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Trump's Terrible Record on Property Rights

The President's recent threat to use "the military version of eminent domain" to seize property for his border wall is just the tip of a larger iceberg of policies and legal positions inimical to constitutional property rights.

Eminent Domain. Art work by Richard Weinstein (used with permission).Eminent Domain. Art work by Richard Weinstein (used with permission).President Trump's recent threat to use "the military version of eminent domain" to seize property for his border wall highlights the ways in which building the wall would harm the property rights of Americans. Less widely recognized is the fact that the wall policy is just part of a larger pattern of administration policy initiatives and legal positions that threaten property rights on multiple fronts.

Though federal law allows the federal government to use eminent domain for purposes of building military facilities, including "fortifications," there is no special "military version" of eminent domain, as such. But whether Trump tries to use this law or some other one to seize property for the wall, the fact remains that less than one third of the land he would need is currently owned by the federal government. The rest would have to be seized from private owners, Native American tribes, and state governments. That would require the forcible displacement of hundreds or even thousands of homes, businesses, and other private facilities. It would be the largest such use of eminent domain in many years. Moreover, the record of previous condemnations for border barriers shows that the Department of Homeland Security has a notorious history of violating procedural rights and shortchanging property owners on the compensation they are due under the Constitution. The same sorts of abuses are likely to recur on a larger scale if Trump gets the money to build his much more extensive wall.

During the 2016 presidential campaign, Donald Trump claimed that victims of takings have nothing to complain about because "when eminent domain is used on somebody's property, that person gets a fortune." The history of border takings - and many other condemnations - proves otherwise.

The wall is far from the only administration policy that threatens property rights, however. There are several other almost equally troubling examples.

In 2017, Attorney General Jeff Sessions reinstituted asset forfeiture policies under which the federal government colludes with state and local law enforcement to seize large amounts of property with little or nor due process, and often from people who have never been convicted of any crime or even charged with one. While Sessions is gone, the asset forfeiture policy remains, and Trump himself is a strong supporter of broad asset forfeiture authority, even threatening to "destroy" the political career of a GOP state legislator who sought to curb it.

In the aftermath of Hurricane Harvey, the US Army Corps of Engineers flooded thousands of homes and businesses in Houston, arguing that this was necessary to prevent even worse flooding elsewhere. When affected property owners sued for compensation under the Takings Clause of the Fifth Amendment, the federal government argued that no compensation is due in cases where the government floods the property "only" once - even if the flooding was done deliberately and inflicted enormous damage. If accepted by the courts, the "one free flood" rule would give the government a near-blank check to flood property (and perhaps damage or destroy it in other ways), so long as it was "just" a one-time occurrence. I don't claim that the administration should have simply conceded liability in the Hurricane Harvey cases. In some cases, it is not clear whether the plaintiffs' property was damaged by the Corps' actions, or whether it would have suffered comparable damage regardless, from natural causes. But the "one free flood" argument is an extremely dangerous and reprehensible position that goes far beyond contesting liability in individual cases where the facts are arguable.

Since Trump took office, the Supreme Court has heard two important takings cases, Murr v. Wisconsin and Knick v. Township of Scott. The administration supported the wrong position in both cases. In Murr, the Justice Department filed an amicus brief supporting a rule that will often allow government to deny compensation for takings merely because the owner of the property in question also owns another adjacent lot. While the brief was initially drafted late in the Obama administration, the Trump administration decided to proceed with it and defend it in oral argument before the Court, despite requests by conservative property rights advocates urging them to desist.

In Knick, the Justice Department's amicus brief offers a dubious and hypercomplex "Klingon forehead" argument that would preserve large parts of the 1985 Williamson County decision, a deeply problematic ruling that creates a constitutional Catch 22 for property owners seeking to file cases challenging state and local government takings in federal court [but see second update below].

The administration's decision to involve itself in these two cases is all the more telling because both involve state and local governments. The federal government could easily have stayed out of them. An administration committed to protecting property rights could, of course, have filed briefs supporting the property owners.

Arguments advocated in administration briefs in important federal court cases, especially those that reach the Supreme Court are more than just insignificant rhetorical fluff. Historically, positions taken by the Justice Department Solicitor General have often had disproportionate influence in judicial decision-making. That's why the SG often called the "tenth justice" of the Supreme Court.

There is one notable exception to the administration's otherwise troubling record on property rights: the appointment of Neil Gorsuch to the Supreme Court. Gorsuch, it turns out, is a strong critic of Kelo v. City of New London, the dubious 2005 decision in which the Supreme Court ruled that the government can take private property and transfer it to another private party in order to promote "economic development." The appointment is especially notable, given that Trump himself is a longstanding enthusiastic defender of Kelo. I suspect that Gorsuch got through in part because Trump simply did not know about his views on Kelo at the time he was appointed, and in part because the president has largely outsourced judicial selection to more conventional conservatives, most of whom do not share the president's views on this issue.

It is also likely the case that property rights were not a central focus in the administration's calculations on judicial appointments (including lower court appointees, some of whom also have good records on these issues). Brett Kavanaugh, the administration's other Supreme Court appointee, has virtually no known record on constitutional property rights issues, so it is not yet clear where he stands on them. Where the administration has made decisions on issues where property rights are a central focus of dispute, property owners have usually gotten the short of end of the stick, as the examples discussed above illustrate.

Some of the Trump administration's policies on these issues are similar to those of the Obama administration, which also had an awful record on property rights, including adopting positions so extreme that they led to multiple lopsided unanimous or near-unanimous defeats in Supreme Court takings cases. On asset forfeiture, however, Trump actually reversed an Obama policy that had strengthened protection for property owners. In any event, here, as elsewhere, Obama's poor record in this field is no excuse for Trump. The Republicans, after all, are supposed to be the party that supports property rights.

The administration's attacks on property rights may in part be a result of Trump's history of benefiting from eminent domain abuse, which is the likely origin of his support for Kelo. But the problem goes beyond his personal proclivities. It is part of a broader pattern under which the Trump-era Republican Party has gradually shifted from conservatism to nationalism, as its dominant ideology. Nationalists, like the European far-right movements whom Trump and his most committed supporters admire, generally favor extensive government intervention and control of the economy so long as the perceived beneficiaries are members of the "right" racial and ethnic groups. Thus, they are happy to downgrade property rights (and economic liberties) that might be obstacles to government control of the economy in the interests of "the nation."

Nationalists also are traditionally hostile to procedural protections for individual rights that might inhibit law enforcement or government acquisition of property supposedly needed for "national" purposes. The administration's policies on asset forfeiture and the wall obviously fit that template. The administration's stances on Knick, Murr, and the Houston flooding cases do not immediately implicate nationalist priorities. But undercutting constitutional protections for property rights in these instances can make it easier to seize or destroy property for nationalist purposes in the future.

The extent to which Trumpian nationalism consolidates and extends its control of the Republican Party remains to be seen. But the longer it lasts and the further it goes, the more the party is likely to be at best indifferent and at worst actively hostile to property rights.

NOTE: I should perhaps mention that the account of the administration's decision to oppose property rights in Murr v. Wisconsin, despite requests to the contrary by conservative property rights advocates, is based on my personal knowledge of the development of the case, in which I authored an amicus brief on behalf of nine state governments that supported the property owners. However, the views expressed in this post are purely my own and don't necessarily reflect those of my clients in that matter.

UPDATE: I have added a brief passage to this post on the importance of positions taken by the administration in federal court cases, especially those that reach the Supreme Court.

UPDATE (Jan. 16): After studying the administration's position in Knick more closely, I think it is more favorable to the property rights side than I suggest above. I may expand on that in a future post, if time permits. I will link to that post here when and if it goes up. In the meantime, I think it is proper to note this revision of my view on the case, here.

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  • AmosArch||

    I'm not sure what you're saying. We haven't had a traditionally conservative President since Reagan, and you can argue back and forth about even that all day long. Trump is actually much more anti-establishment and hated by the establishment than any President in either party in recent memory. So if Ilya actually was as opposed to all powerful and intrusive governments and top down control as he claimed, he'd realize that if it was possible to tear down or upset the system, Trump, by his rhetoric if nothing else, is the guy that has come closer to doing so than any of his immediate predecessors.

  • Last of the Shitlords||

    Don't bother engaging him. 'Galt' Is really the poster popularly known as a Michael Hihn. He is a deranged idiot who attacks everyone he encounters, even if you agree with him. He is a shitposter extraordinaire. He is so awful that Reason took the rare, perhaps unique step of not only banning the 'Michael Hihn' account, but also cleansing all 'Michael Hihn' comments from the entire website.

  • Rossami||

    With respect, I disagree. John Galt Jr has a very different writing style and use of vocabulary than Michael Hihn. Galt's comments never display the abuse of capitalization, bolding and irrelevant quotes that were Hihn's hallmark.

    You may disagree with them both (I often do) and you may even consider them both trolls. But they are almost certainly different people.

  • mad_kalak||

    Naw, it's the same person. He's slipped and put that "Left-Right=Zero" signature in the Galt handle comments. He reads like the same unhinged twerp too, at least to me.

  • Calidissident||

    Saying "anti-establishment = good if the establishment is bad" assumes two things: 1) That they will actually change the negative aspects of the establishment and their impact and 2) That such will change will necessarily be positive. I don't see any reason to assume either of those things are true, whether we are talking about Trump or a generic "anti-establishment" politician.

  • James Pollock||

    "let Bernie and Elizabeth do the same for their own party."

    Bernie isn't a member of a party.

  • Joe_dallas||

    The socialist party and the democrat party are effectively one and the same.

  • ||

    I suspect a secure southern border is on the way. Get used to it.

  • Sarcastr0||

    As Franklin said, "I'm too excited for more safety to care about the price!"

  • Rev. Arthur L. Kirkland||

    I'm just grateful my children get to compete economically with the people who believe a wall is needed, a wall is going to be built, and Mexico will pay for it.

    Carry on, clingers.

    Without a wall, though.

  • Last of the Shitlords||

    Shut up baby dick.

  • TwelveInchPianist||

    "I'm just grateful my children get to compete economically with the people who believe a wall is needed, a wall is going to be built, and Mexico will pay for it."

    Ironically, the belief that one's children benefit from "competing economically" with Trump supporters, and the belief that the wall is needed, derive from the same poor economic reasoning.

  • Rev. Arthur L. Kirkland||

    You figure Trump is going to rework economic fundamentals to enable uneducated, unskilled, disaffected, downscale white males who inhabit the shambling backwaters not only to prosper, but indeed to do so at the expense of the "elites" residing in America's modern, successful communities?

    He campaigned on that point, much as he campaigned on a Mexico-funded wall, but only the most gullible audiences believed it.

    In general, Trump's stale-thinking, bigoted supporters get what they deserve. That's why they are malcontents.

  • TwelveInchPianist||

    "You figure Trump is going to rework economic fundamentals to enable uneducated, unskilled, disaffected, downscale white males who inhabit the shambling backwaters not only to prosper, but indeed to do so at the expense of the "elites" residing in America's modern, successful communities?"

    Of course not. First of all, AOC is going to bulldoze your "modern, successful community" and turn it into a collective farm.

    Second, in a free market, people generally don't "prosper" at the expense of others. That happens in the socialist economies that you and AOC favor.

  • Alpheus W Drinkwater||

    "Second, in a free market, people generally don't "prosper" at the expense of others."

    That might be the most hilarious thing I've ever read in this comments section.

  • TwelveInchPianist||

    "That might be the most hilarious thing I've ever read in this comments section."

    Laugh all you want, but the world in generally much more prosperous than it was 25, or 50, or 100 years ago. A rising tide lifts all boats.

  • Stephen Lathrop||

    A rising tide sinks any boat chained to the bottom by a too-short anchor rode. Since the 1970s, the American middle class has been chained to the bottom.

  • TwelveInchPianist||

    Chained to the bottom, in terms of world prosperity?

  • Sarcastr0||

    By ignoring wage inequality and buying power in favor of just income we can ignore a lot, but while America's position remains strong, our momentum has not been great for anyone but the rich.

  • Joe_dallas||

    They dont have much wage inequality in venzuala
    same with cuba
    same with Russia

    Socialists utopias

  • Sarcastr0||

    Strong point. If I think wage inequality is a bad thing, I must love Venezuela!

    Funny you didn't mention actual socialist states like Scandinavia. I mean, they have their problems as well, but I guess if you're gonna strawman might as well go for the gusto.

  • Joe_dallas||

    Ah - the socialists scandinavia countries

    gdp per capita
    sweden 53k
    denmark 56k
    US 59k
    Finland 46k
    germany 44k

    The same scandinavia countries who are trying to reduce the socialist burden

  • Sarcastr0||

    ...what is the relevance of gdp per capita?

    Are you trying to argue that Sweden and Denmark aren't truly socialist? That they are but too poor to compare or us? (and yet Venezuela and Cuba are...?)

  • billatcrea||

    It seems that "Socialism" has regressed to being just another epithet in the Humpty Dumpty sense, "When I use a word, it means what I choose it to mean." The last time checked Sweden, Denmark, Finland, and Germany (!) still had a fairly robust private sector.

  • Sarcastr0||

    If you're going to define socialism as 'government has nationalized all industry,' then you can't argue addressing income inequality is socialist.

    Heck, nor can you call Venezuela or Russia socialist!

  • TwelveInchPianist||

    "If I think wage inequality is a bad thing, I must love Venezuela!"

    Why do you want everybody to be poor, Sarcastr0?

  • Sarcastr0||

    It could be my hatred of blacks, and of white males. Or my dreams of being Stalin reborn. But it's probably my simultaneous incredible dumbness and bad faith.

  • TwelveInchPianist||

    Come on now, Sarcastr0. You're not dumb.

  • Sarcastr0||

    :-D

  • Rossami||

    re: Scandinavian states are socialist

    No, they are not. They toyed with socialism in the 1970s and 80s, discovered that it was a disaster, and rapidly liberalized their economies. Scandinavia remains committed to the big-welfare-state model but that is not synonymous with socialism.

  • Sarcastr0||

    Fun times in semanticland.
    Happy to go by your definition. But beware! If democratic socialism isn't socialist, no American politician is socialist, from Bernie Sanders to AOC.

  • Calidissident||

    None of the Scandinavian countries are actual socialist states.

  • Sarcastr0||

    But those judges tho.

  • AmosArch||

    Be honest. If President Clinton started seizing property to build a Border Corridor to funnel immigrants in you'd be all for it.

  • Sarcastr0||

    Ain't no ad hominem like a speculative counterfactual ad hominem.

  • James Pollock||

    Hold on, I'd like to see this idea expanded upon. What mechanism is President Clinton using to "seize" property? His charm? Personal integrity? Just how is he achieving this?

  • Sarcastr0||

    Illuminati, I'd imagine.
    Sounds like alternate Clinton takes off the mask revealing America's secret masters, and only one man can stop them.

  • PoxOnBothYourHouses||

    Oh!

    /That/ President Clinton!

    I'm a little slow sometimes.

  • Absaroka||

    "In the aftermath of Hurricane Harvey, the US Army Corps of Engineers flooded thousands of homes and businesses in Houston, arguing that this was necessary to prevent even worse flooding elsewhere."

    I dunno about this one. It seems a bit like the trolley problem, with the government switching the trolley to harm the fewest people. Things were going to be taken from someone. It seems perverse to say that if the government did nothing and thus 20000 people are harmed that's constitutionally preferable to doing something so only 5000 people are harmed (or whatever numbers you like).

    I'm open to a moral argument that the 20000 unflooded people (and perhaps the rest of us who Mother Nature was kinder to that year) ought to help out the 5000, but that's not a takings clause constitutional argument.

    (those numbers are plucked from thin air)

  • Brett Bellmore||

    Actually, this is a classic takings clause case; The government thinks some specific person's property, no substitute is available, is needed for the general welfare. Acts for the general welfare are to be paid out of general tax revenues, not just by saying, "You! Yes, you! The government needs your 20 acres, sucks to be you."

    The government gets the property, but has to pay for it.

  • James Pollock||

    "The government gets the property, but has to pay for it."

    The government didn't get the property, though.
    That might be an interesting wrinkle to pitch, though. You can have money, but the title to the property goes to the feds, or you have keep the property, and the feds keep the money.

  • Brett Bellmore||

    Ah, but the government DID get the property: They damaged it. That was their use for the property.

  • PoxOnBothYourHouses||

    You break it, you own it.

  • Absaroka||

    Help me out here. A neighborhood is about to be burned over. The fire trucks roll up. In the instant available the chief decides some homes can be saved, while others get left to burn, and deploys his men appropriately.
    Did the government just take the houses that burn, and owe compensation? If so, what if they just let the whole neighborhood burn? Did they take the whole neighborhood, or none of it?

    Or, there is a riot raging. The police stop what looting they can. Are the looted stores that the police couldn't protect a taking?

    I get the notion that the government deciding to seize land for a hydro dam is a taking. I'm not sure minimizing the total harm in exigent circumstances ought to also qualify. That would minimize the total liability by having the government always doing nothing in emergencies. I'm not sure that's a good idea.

    What's the originalist view? If the 1790's government only had troops to protect some farms from Indian raids, or later your house got hit by a Union cannonball at Gettysburg? Takings?

  • James Pollock||

    " Are the looted stores that the police couldn't protect a taking?"

    Yes, but not by the government.

  • Brett Bellmore||

    Look, the key point here is that their intervention actually made certain property owners worse off than if the government hadn't acted at all. That key feature is missing from your first two scenarios.

  • bernard11||

    There is a difference between the government

    (a) allocating limited resources to the detriment of some, and

    (b) deliberately destroying the property of some to protect that of the rest of the community.

    In the latter case it seem to me that the community, having benefitted form the destruction, ought to pay compensation to those whose property was taken.

    If you want me to lose $10 to avoid a $100 loss to you it seems only reasonable that you should reimburse me at least $9.

  • Absaroka||

    "allocating limited resources to the detriment of some"

    But wasn't that what they did? There was a limited resource, namely places to put floodwaters, and the government allocated that resource so as to minimize the total damage.

    Let's make it an explicit trolley problem: a lake has two spillways, each feeding a different drainage. By chance, Spillway A is open and B is closed. Torrential rains start, and so one spillway must be kept open. Drainage A has a lot more people than drainage B, so the operators close spillway A and open B.

    IIUC, you view that as a taking, specifically, the government took from the people in drainage B (property and perhaps lives).

    But what if the operators don't switch spillways, and the houses in drainage A flood? That's not a taking, because the operators took no action, they just left the spillways set however chance left them?

    What if an automated system was set to make the switch autonomously[1], and the operators let it switch to B w/o intervening. That's exactly the same outcome as if they switched it themselves, but not a taking since they didn't do anything?

    [1]as part of allocating stream flow for fish or something

  • TwelveInchPianist||

    The takings clause provides the answer to the trolley problem here. If the government uses the property to store floodwater, it's a public use and a taking. If the property just becomes flooded, then it's not.

    It's intuitively easier to understand with something like a garbage dump. If the government takes your property for a garbage dump, the have to compensate you, they can't say, "well, the garbage had to go somewhere.

  • Absaroka||

    I'm not sure I find the dump analogy ... analogous :-).

    Dumps can be sited in a wide variety of places (as well as other options; my town burns most of it in an incinerator/power plant), and 'garbage crisis' rhetoric aside doesn't present exigent circumstances.

    If our lake had spillways A->Z, and there was time to ask for bids to take the water, and the option to truck it to a spillway across the state, ..., then I'd buy that analogy.

    "The takings clause provides the answer to the trolley problem here. If the government uses the property to store floodwater, it's a public use and a taking."

    In your view, is that true whether the floodwater is stored because of action (the spillway is switched to minimize damage) or inaction (the spillway is left alone)? Either way, floodwater is being stored somewhere, yes?

    And it seems really complicated once inaction becomes a compensable action. For example, the dam is built with only spillway A. People point out there will be damage if bad enough rains come, unless spillway B is built. But the alternative spillway is never built. Does that inaction mean every flood in drainage A is now a taking? That can't be right - it would mean every single flood anywhere was a taking, because the government didn't build a flood control dam at that location.

  • Brett Bellmore||

    In this case it was because of action. The state affirmatively acted to cause greater damage to certain property owners than if it had done nothing.

    So we can stop discussing cases where the state doesn't do anything, this is not what we're discussing.

  • Stephen Lathrop||

    So TwelveInch, the government builds a flood control structure, equivalent to a dam, except that there will only be water behind it during a flood. The land is dry otherwise.

    To do that, the government pays for and takes the lower-lying acreage behind the dam, which is most likely to flood. The government leaves in private hands other undeveloped acreage at a higher elevation, which would flood only in rare monster floods. But the potential for that rare flooding can be unambiguously mapped, simply by drawing an elevation contour at the elevation of the dam's spillway.

    Later, private developers subdivide the flood-prone private acreage (available cheap), build houses on it, and sell them to suckers, without telling them they are actually buying a house on the floor of a flood control reservoir. The inevitable happens. Government's fault? Government owes for taking the value of improvements added after the dam was built?

    Does anything change given evidence that the developers fought successfully to prevent a requirement that subdivision plats carry a warning about the flood hazard?

  • JD85||

    The alternative was "the government lets the reservoir break, leading to uncontrolled flooding and the potential death of thousands"

    Is that the preferred government action?

  • JD85||

    What if the reason the government has to make a choice is because individuals have built their homes along spillways, putting themselves into harms way? The reservoir spillways and paths were known to all homeowners before purchasing their homes. Every home is given a floodplain designation, and drainage maps are readily available.

    At what point do homeowners, who purchased a home in a flood drainage pathway, have responsibility for their decision?

  • TwelveInchPianist||

    "That would minimize the total liability by having the government always doing nothing in emergencies. I'm not sure that's a good idea."

    But governments aren't necessarily incentivized to minimize liability. If a bunch of voters collectively lose millions of dollars of property, and government officials say, "well, we didn't throw the switch because we would have had to pay some dude thousands of dollars", they might not be public officials much longer.

  • Absaroka||

    Good point!

  • EscherEnigma||

    That's why it's the "Trolley Problem".

    Do nothing, five die and one lives.
    Do something, five live and one dies.

    Strictly speaking, the question is liability. If the government does the "right" thing (where "right" means "minimizing damage" in this context), should it be liable for the costs of it's action?

    More broadly, the question is incentive. Do we want a government that has incentives to do the "wrong" thing because doing the "right" thing will hit it in the pocket book?

    To be clear, I don't have an answer, but that's why it's a moral question mixed with a legal one.

  • ThePublius||

    "Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking"

    https://reason.com/volokh/2018/12/04/-
    texas-court-rules-deliberate-flooding-of

  • DavidS-T||

    "...the Trump-era Republican Party has gradually shifted from conservatism to nationalism, as its dominant ideology." This confuses libertarianism with conservatism. Conservatism is perfectly consistent with nationalism. The free-market ideology to which the GOP once at least paid lip service is not.

  • ThePublius||

    A federal taking of land for a border wall is EXACTLY what eminent domain is all about. It's the most fundamental case of it.

  • santamonica811||

    Yeah, this was my thought as well. We can disagree about whether or not the wall is a good idea. (I think it's pretty dumb as Trump envisions it; you may think it's great.) But I don't see how it can be disputed that this is one of the classical used for ED...protecting our country's borders. Seems pretty straightforward to me. The issue of what compensation is fair is, as always, a much more complex issue.

  • Rev. Arthur L. Kirkland||

    Libertarians For Commandeering Private Property To Promote Authoritarian, Cruel, Bigoted Immigration Practices?

    Carry on, clingers.

  • I Callahan||

    Because Art the Commie doesn't like Trump's policies, the idea is bigoted and those who believe in any of those ideas are clingers.

    You're the most one dimensional commenter in these threads. Why don't you grow up and engage?

  • Rev. Arthur L. Kirkland||

    I generally aim to engage with the liberty-minded of good cheer and to mock disaffected faux libertarians and other half-educated right-wingers.

    If I Callahan dislikes my comments, my aim must be true.

    Bonus sentiment.

  • Red Rocks White Privilege||

    I generally aim to engage with the liberty-minded of good cheer and to mock disaffected faux libertarians and other half-educated right-wingers.

    So basically, people on your educational and emotional level, hicklib?

  • Per Son||

    Honestly, if the use of eminent domain to take land for a border wall is not constitutional, I don't see any eminent domain being permissible. Whether such a taking is good policy is a second question, as is whether the compensation will be just.

  • Mesoman||

    I tire of articles attack what Trump might do, as opposed to what Trump has actually done. But the author her is Ilya Somin, who has never met a keyboard whose best use is not to bash Trump.

    Tiring.

    And as ThePublius mentions, a border wall really is exactly what eminent domain is all about.

    An Ilya, what do you have to say to those along the border who have lost their property rights due to the constant passage of debris leaving, property damaging and stealing and life threatening illegals. One of those people is a friend of mine. How about their rights?

    Oh, that's right - Open Borders Uber Alles.

  • Sarcastr0||

    One can not be open borders, and also think what Trump is proposing is an abuse of power. Though I do like the side arguing nationalism above property making a Nazi ref.

  • TwelveInchPianist||

    "One can not be open borders, and also think what Trump is proposing is an abuse of power."

    But Prof Somin is, in fact, pro open borders.

  • Sarcastr0||

    But that's not required for his reasoning in the OP; therefore there's no reason to bring it up.

  • Leo Marvin||

    But Prof Somin is, in fact, pro open borders.

    1. What Sarcastro said.

    2. If there's anything Ilya is more than he is open borders, it's anti-takings. One can't have read more than a handful of his posts and doubt he'd oppose this taking even if it had nothing to do with immigration.

    In other words, in addition to the irony Sarcastro points out, the Open Borders Uber Alles remark you defend is textbook ad hominem. Its purpose is to distract and its effect is to mislead.

  • ||

    When it comes to immigration, the ends justify the means. I'd be okay with Trump instituting martial law if it stemmed the importation of third-world Hispanics. I'd even support removing the non-citizen ones already here.

  • Leo Marvin||

    Nice of you to reassure us that your affection for lawlessness isn't for its own sake, but to produce something really special, like some old-school, in-your-face racism. Thanks. That's swell.

  • ||

    Wah wah racist wah wah. Have you seen what majority Hispanic areas of America look like? Go walk around LA, Brownsville, West New York, or Miami before you embarrass yourself more.

  • Leo Marvin||

    Well, you got me. I'm so embarrassed. I've never seen a Mexican-American. Do they all wear ponchos and sombreros, ride burros, and talk like Speedy Gonzalez?

    I've lived in LA for 30 years, genius. Where do you live? William Shockley's haunted basement?

  • Red Rocks White Privilege||

    I've lived in LA for 30 years, genius.

    So you have seen what shitholes majority Hispanic neighborhoods tend to be. Thanks for confirming that.

  • Leo Marvin||

    By the way, you don't deny you're racist, do you? Because I was under the impression you wear it as a badge of honor. If you've been trying to fly under the radar, you really must reevaluate your public relations strategy.

  • ||

    I'm not a racist. I'm a racialist.

  • Leo Marvin||

    Po-tay-to, po-ray-cist.

  • Rev. Arthur L. Kirkland||

    On behalf of the liberal-libertarian mainstream, I thank the Volokh Conspiracy for years of service in bringing relatively unvarnished conservative opinions -- including those in the comments from the Conspiracy's carefully cultivated right-wing following -- to a broader audience.

    It is good for many Americans to be exposed to the degree of stale thinking and intolerance among America's Republicans and conservatives.

  • Red Rocks White Privilege||

    On behalf of the liberal-libertarian mainstream, I thank the Volokh Conspiracy for years of service in bringing relatively unvarnished conservative opinions

    As well as stale copypastas from subliterate hicklibs.

  • Calidissident||

    "We need to embrace totalitarianism or else those damn Hispanics are going to bring about the end of liberty!"

  • ReaderY||

    I agree with Professor Somin that the Wall is a bad idea.

    But I do so strictly on political grounds, not on "rights" grounds. I don't think such a Wall is necessary and I think it may well be bad for long-term National-security, as it is likely to lead to ruptures with our neighbors resulting in long-term bad blood, making conflict more likely and peace and security less likely.

    But if I thought a wall was good policy, I wouldn't hesitate to use eminent domain to build it. Military use is a classic public use. There's no constitutional problem with using eminent domain to acquire the land.

    The question therefore seems to me to be entirely a policy question, and not a property rights question at all. If it's good policy, property rights are no obstacle. And while I think it's bad policy, property rights strike me as having very little to do with the reasons why.

  • TwelveInchPianist||

    The fact that it requires large scale property takings is one reason that the wall is bad policy, but you are correct. Prof Somin is wrong to say that the wall implicates "constitutional property rights". The wall is a classic public use taking, and no one has suggested property owners will not receive just compensation.

  • Sarcastr0||

    I guess it depends on whether you think harming property rights is something the Constitution always forbids. ED may be legal, and also harm property rights.

    And if ED is being used in service of populist nationalism via bad policy, that's also abusive, although not illegal.

  • I Callahan||

    "Bad Policy". That's your opinion, Sarcastro, and that's what makes your argument here null. There are plenty of people in this thread who think the wall is bad policy, but can still admit that ED would still be applicable.

  • ThePublius||

    "Bad policy" is entirely subjective. It's only bad if you are opposed to it. Many are not. For many, your preferred policy is "bad policy," and implementations of it "abusive" use of federal power.

  • Sarcastr0||

    The very fact that you are arguing that the debate is over once legality has been determined shows the creeping ideological and moral bankruptcy has bitten you deep.

    Postmodernism isn't a great refuge in political discussions.

  • TwelveInchPianist||

    "I guess it depends on whether you think harming property rights is something the Constitution always forbids. ED may be legal, and also harm property rights.

    And if ED is being used in service of populist nationalism via bad policy, that's also abusive, although not illegal."

    Sigh. ED certainly harms property rights in general, as do many government policies, like taxes. But Somin claims that "The President's recent threat to use ... eminent domain to seize property for his border wall is just the tip of a larger iceberg of policies and legal positions inimical to constitutional property rights."

    But as many folks have pointed out, nothing in Trump's threat is "inimical to constitutional property rights", as it is a classic public use taking.

    And I'm not sure how you get from "bad policy" to "abusive" cuz populist nationalism.

  • bernard11||

    nothing in Trump's threat is "inimical to constitutional property rights", as it is a classic public use taking.

    True, but I think that the need to use eminent domain to effect a policy ought to count as at least a quarter of a strike against the policy. It doesn't make it unconstitutional, but it does need to considered as a negative aspect. This would be especially true of the wall, which would require large-scale takings.

  • Brett Bellmore||

    Fair enough. We're mostly objecting to the idea that eminent domain to build the wall would be a Constitutional rights violation, on the basis that the Constitution specifically provides for eminent domain, and a border wall is a classic case of 'public use' whether or not you think it's a good idea.

    Is it a natural rights violation? Sure You can't have government AT ALL without natural rights violations.

    And, yes, as such it is a point against the wall, just as is the fact that it will be paid for with taxes, also a natural rights violation. So the wall starts out with the same sort of arguments against it as any public infrastructure project (Roads, for instance.) must, inevitably, overcome.

  • Sarcastr0||

    I don't disagree with your conclusion, but that's not how I get there. Constitutional rights are impinged all the time; they are not a bright line they are a thumb on the scale. Property rights are definitely violated - just because the government is Constitutionally allowed to take your property doesn't mean the Constitution doesn't recognize that right.

  • nonzenze||

    no one has suggested property owners will not receive just compensation.

    He has suggested that this is a possibility -- and cited this study that makes that claim. Specifically, ProPublica (which is of course not a neutral observer) claims that DHS made a procedural mess, under-compensated property owners and generally dragged owners through bureaucratic hell.

    I'm not quite as anti-ED as Ilya (et al) but I would strongly like that, if the government does seize property, that it provides a clear process for valuation and that it pays some modest premium over fair market value such that any reasonable observer would conclude the property owner got a 'good deal' out of it.

    For instance, I would say that for seizure of an individual residence, FMV + 10% + $50K is a (very arbitrary) starting point. The lump sum is a good guess for how much you'd have to pay an arbitrary homeowner for the costs and pain of just up and moving. The 10% is a way for the government to express its appreciation for the homeowner's contribution.

  • Bob from Ohio||

    Why should a property owner get a windfall? Fair Market Value is defined as what a willing seller will take and a willing buyer will pay, both without any compulsion to act.

    There is no government FMV, just FMV.

  • Absaroka||

    "Why should a property owner get a windfall? Fair Market Value is defined as what a willing seller will take and a willing buyer will pay, both without any compulsion to act."

    I'm open to correction, but I don't think the sellers in eminent domain cases are really all that willing.

    At any given moment in, say, Fargo there are people who have already decided they want to sell their houses - they want to move to Florida, downsize, whatever. That's the fair market value for people who want to sell. Let's say it is $250k for our canonical house. That's the number that appraisers, Zillow, etc are trying to guess, and I think the one that's used for condemnation.

    But there is another fair market value - the one it would take to make willing sellers out of people who don't want to sell. I submit that number is a lot higher than the FMV of people who already want to sell.

    Let's suppose Zillow/appraisers/etc report that your next door neighbor's house is worth 250k. You decide you'd like to buy it, so your inlaws can be close in their dotage or your kids close so you can babysit or whatever. You go knock on your neighbor's door and say 'Hey, sell me your house for the FMV of $250k'. How often do you think the neighbors will agree to sell?

    You can't pay whatever people say they want, to be sure - some people will name outlandish prices. But it's fiction to think everyone would be willing to sell for the appraised price - if they were, their house would already be on the market.

  • ||

    Do you think we currently have "good blood" with Mexico? The symbolism of the wall is exactly why it's a good idea.

  • AmosArch||

    I agree with others, you may or may not agree with this but border security and eminent domain are hardly unprecedented concepts. Prof Somin might as well have typed "I HATE TRUMP I HATE TRUMP I HATE TRUMP" over and over again and posted that for all the contribution this and many of his other posttrump articles have given to the sum total of human knowledge and insight.

  • Sarcastr0||

    He's not arguing unprecedented, though.

  • Alpheus W Drinkwater||

    The real point is that Neocon arguments in favor of smaller government are entirely in bad faith. When government takes huge swaths of private property for a use with which they agree, they are on board 100 percent.

  • Toranth||

    Smaller government does not mean opposition to Eminent Domain.
    A smaller government would use it LESS, because it would be doing less in general. But it is still an essential part of running a government - unless you think small government should also oppose public roads, firehouses, police stations, military facilities, etc.

  • Sarcastr0||

    This doesn't look much like less. This looks a lot like more.

  • Harvey Mosley||

    Sarcastr0, no response to the idea that Neocons are arguing in bad faith? I'm shocked.

  • Sarcastr0||

    Yeah, I'm a partisan, and don't really have a good time calling out my fellows even if I disagree with them.

    But in this case I do agree (though dunno about the term neocon) - the small government rhetoric doesn't comport with the current enthusiasm for domestic use of the military and a huge use of ED.
    Not to mention regulating social media, using the bully pulpit to bully private businesses to stay national, raising taxes via tariffs, using 'acting' cabinet officials to avoid Senate vetting, etc. etc.

    If you don't support Trump's admin and are conservative, that makes sense. If you support Trump for them judges and grit your teeth at everything else, that makes sense. But if you support Trump and call yourself a small-government conservative or a libertarian or anything like that, you're lying; possibly even to yourself.

    So either bad faith or self-delusion. I guess Drinkwater is giving the benefit of the doubt.

  • Rev. Arthur L. Kirkland||

    This is a faux libertarian blog with a faux libertarian following. You have been around long enough to recognize this, Sarcastro.

  • Sarcastr0||

    What I've realized is that they're all fake libertarians by one rubric or another. It's just a brand.

  • jph12||

    What I've realized is that you are an intellectually dishonest douchebag, so what you've realized probably isn't all that important.

  • Perseus`||

    Talk about arguing in bad faith. "Neocons" do not favor smaller government across the board. If you are not going to adopt open borders, then walls will be among the things used to help secure the border. And unlike redistributive welfare policies, eminent domain involves paying people for taking their property for a public good (which was Nozick's justification for taxation).

  • Alpheus W Drinkwater||

    "Redistributive welfare policies" provide assistance to the poor, which is a public good. You can make up names and false distinctions all you want, the fact remains that you only argue for smaller government when the government pursues policies you disagree with.

  • ||

    Welfare for the poor is not a public good. It benefits no one beyond the person getting the money.

  • Rev. Arthur L. Kirkland||

    Republicans argue that school lunches for poor children are not a public good, then wonder why they have lost the culture war and are destined to spend the rest of their lives complying with the preferences of America's better elements.

  • Rev. Arthur L. Kirkland||

    Republicans argue that school lunches for poor children are not a public good, then wonder why they have lost the culture war and are destined to spend the rest of their lives complying with the preferences of America's better elements.

  • Bob from Ohio||

    "Neocon arguments in favor of smaller government "

    What are you talking about?

    A "neocon" favors aggressive US action abroad and a very large defense establishment.. They are the opposite of a smaller government type.

  • David Welker||

    The problem with this worship of property rights is not with the individual stories where property rights are used to push back against an excessive government. The problem with the worship of such rights is that property is unevenly distributed based on initial conditions that are themselves often unjust. The worship of property rights or undue reliance on them has the effect of empowering elites, including the elites who run government, at the expense of the ordinary person. In contrast to free speech rights. In contrast to gun rights. In contrast to human rights that are truly universal and have the effect of making people truly more equal under the law and in society.

    In fact, it is fair to say that our society obsesses too much about property. We often define people as elite or not based on their access to property. We ask how much someone's income is because that is a proxy for how much property they can bring under their dominion.

    Somin's view is that our property obsessed society should protect property rights even more. My view is that this is true in some cases, such as asset forfeiture, but simply wrong overall. The exclusive privileges that come from exclusive access to property ought to be reduced, not increased.

  • David Welker||

    (cont.)

    Let us take the organ donation case. What is really being argued here? We are saying those with much property ought to be able to leverage that power and create economic pressure on those who lack it to harvest their "non-vital" organs while still alive. No. Just no. This is not how we ought to run our society.

    What is being argued in the flood cases? That the judicial branch ought to put pressure on the executive branch to minimize its liability by avoiding actions that would put more valuable property at risk. When, what the government ought to be thinking about nearly exclusively is protecting human life.

    When we worship property rights, we end up giving up and devaluing all of the other rights. Indeed, for example, it is property rights that allow the elite to exempt themselves when they reduce the rights of the rest of society. For example, when and if liberals manage to ban guns, you can be guaranteed that the elite class responsible for such bans will leverage their property rights to hire armed guards to protect themselves. They will not be the ones left without the practical ability to defend themselves.

    Indeed, property rights, unlike other rights, enable the elites to avoid the consequences of their own laws trampling the rights of everyone else. For this reason, property rights deserve special skepticism.

  • bernard11||

    Among other problems with your argument is that eminent domain is often used in favor of elites, and against the interests of less powerful, less wealthy individuals.

    Isn't that what happened in the Kelo case?

  • David Welker||

    "Among other problems with your argument"

    What other problems?

    "eminent domain is often used in favor of elites"

    Kelo would not have prevented eminent domain from being used in favor of elites. Just because someone holds a government position, that does not mean they are not an elite and it does not mean that they are not engaging in some sort of self-serving "empire building" rather than pursing the public interest. It is very difficult for courts to police these things, since whether a given project is really in the "public interest" is usually debatable. And this problem is mostly orthogonal to the issue of whether a private or public party owns the land. Also, even if a policy is in the pubic interest, the issue of whose ox is gored to advance that public interest might be a matter of private dealing and personal politics and relationships. If you thought that Kelo would largely protect the public from eminent domain abuse, you are wrong. It wouldn't really even do much to help.

  • David Welker||

    (cont.)

    I am not denying that government processes, including eminent domain, being twisted in favor of elites is a real problem. I am just asserting that increasing the strength of property rights is not really going to address that issue and in fact, will tend to conflict with our ability to address that issue. For example, if certain liberals got there way and were able to largely ban gun possession outside of the home, I can guarantee you that there would be liberal exceptions to this policy for private security in place to protect the elites. I think we can also safely assume that the elites will make sure there is an abundance of armed "public" law enforcement in place to protect their safety and interests in addition.

    That said, there are protections of property that make sense. For example, asset forfeiture creates policing for profit motives. But guess what, that isn't enough either. As the Justice Department report in Ferguson shows, the revenue from ordinary fines can ALSO create a policing for profit problem. I am not opposed to efforts to curb either asset forfeiture or eminent domain abuse. But I do not think that such efforts should come under the banner of property rights, because it is both under-inclusive and over-inclusive and will cause other problems when property rights conflict with rights that are more universal in their nature.

  • jph12||

    "For example, when and if liberals manage to ban guns, you can be guaranteed that the elite class responsible for such bans will leverage their property rights to hire armed guards to protect themselves. They will not be the ones left without the practical ability to defend themselves."

    What are the guards going to be armed with if guns are banned? And if the liberals do exempt private security from the gun ban, isn't the problem the hypocrisy of the liberals in providing the exemption rather than the property rights of the elites in taking advantage of it?

  • David Welker||

    Hypocritical or not, exemptions to gun laws are common place and typical. For example, off-duty and retired police officers are typically exempt from many of the gun laws that apply to the rest of us.

    And this case is not limited to guns. Take zoning laws. When rents are driven up to rates that are unaffordable for increasing numbers of people, the elites who are responsible for such laws are able to shield themselves from the consequences both because they have high incomes and because they own much of the property whose value is artificially increased by the government-created scarcity.

    The phenomenon of liberal elites leveraging their property rights to essentially shield themselves from the negative consequences of their policy choice is not unique to guns rights.

  • jph12||

    "Hypocritical or not, exemptions to gun laws are common place and typical. For example, off-duty and retired police officers are typically exempt from many of the gun laws that apply to the rest of us."

    Then the problem isn't with property rights, is it?

    "And this case is not limited to guns. Take zoning laws. When rents are driven up to rates that are unaffordable for increasing numbers of people, the elites who are responsible for such laws are able to shield themselves from the consequences both because they have high incomes and because they own much of the property whose value is artificially increased by the government-created scarcity."

    You realize that zoning laws are an infringement on property rights, right?

    "The phenomenon of liberal elites leveraging their property rights to essentially shield themselves from the negative consequences of their policy choice is not unique to guns rights."

    If there are enough of these liberal elites around to get all of their preferences enacted, how are they still elite? Policies are like taxes--the 1% can't provide enough political or economic capital to run the country.

  • akita96th||

    Trump is a tyrannical asshole and a treasonous bastard.

  • I Callahan||

    0 points. No originality or style whatsoever.

  • Brett Bellmore||

    I can't help but think the prof is exaggerating how much control Trump actually has over the Justice department, given the 'resistance' and the Senate slow walking his non-judicial nominations. My impression is that the department is running mostly on autopilot, still executing the previous administration's policies.

  • Sarcastr0||

    As the saying goes, the buck stops with Obama.

  • Brett Bellmore||

    It does, until Trump is allowed to hire and fire. He's still facing the threat of being charged with "obstruction of justice" if he starts cleaning house at the DoJ and FBI.

    I mean, he fired an almost universally hated head of the FBI, and ended up with an independent counsel investigation over it. He orders, orders a FISA warrant application declassified and released, and Justice says, "No."

    The guy is not yet in control of the DoJ, they're treating his orders as suggestions at this point.

  • Leo Marvin||

    LOL. The only way the guy currently running DOJ could be more pliant to Trump's every whim is if he started hawking toilets for guys with mushroom junk.

  • Rev. Arthur L. Kirkland||

    . . . or scam hot tubs for people with bone spurs . . .

    (nicely played, Leo)

  • Leo Marvin||

    ;)

  • Sarcastr0||

    Say what you will about the ending conclusion, but this sure doesn't look like Obama's DoJ...

  • Jimmy the Dane||

    I'm not a big fat constitutional scholar sitting in an ivory tower, but it would seem to me that the original intent of eminent domain was specifically designed for things such as a border wall necessary for national security. I couldn't think of a more acceptable public use other than maybe using eminent domain to build a necessary interstate expansion or another type of road/bridge.

    But, what do you expect from some of the contributors here? Just another Trump hit piece.

  • Alpheus W Drinkwater||

    But that's exactly what one would expect from commenters here. Smaller government and more individual rights, unless the opposite produces something I like.

  • ReaderY||

    On the other issues, I recognize that Putin-style government includes taking property from enemies and giving it to friends, sometimes on a massive scale, as a way of accumulating and consolidating power. I would be the first to agree with Professor Somin that such a mode of government is against our constitutional principles.

    But nonetheless I don't think the specific issues he's cited reach that level.

    I agree with Professor Somin that civil forfeiture shouldn't be used absent a corresponding crime in the routine manner that it has been. But it has been part of our jurisprudence for many years. Courts allowed seizure of ships for minor offenses.

    I also think the flood control issue is complicated. I am skeptical of a constitutional regime in which if government does nothing for flood control, it is immune from liability, while if it attempts to do something, the taxpayers suddenly become fully responsible for what would otherwise have been a fully natural disaster. As with Good Samaritan liability, when attempts to help result in liability while doing nothing doesn't, people won't help. This is not necessarily the policy society wants to have.

    I think each issue has to be looked at on its own merits, as before. Only if the Administration is actually seeking to use government power to reward business and political friends and punish business and political enemies should we intervene. I agree we need to be vigilant in checking whether this is happening.

  • bernard11||

    I am skeptical of a constitutional regime in which if government does nothing for flood control, it is immune from liability, while if it attempts to do something, the taxpayers suddenly become fully responsible for what would otherwise have been a fully natural disaster.

    But to a large extent that "government liability" is a cost to taxpayers who are, roughly, the flood victims. So while the government as an institution may escape liability by doing nothing that doesn't mean much. The taxpayers still bear a loss, in their role as flood victims. So it is in the government's interest - the taxpayers' interest - to minimize the total damage.

    What we are talking about here is similar to what I think is called "general average" insurance on sea freight. If, for example, some cargo must be jettisoned to save the ship then the loss is divided up among all the shippers, not borne solely by the one whose cargo is lost.

  • Krayt||

    They had a similar situation in New Orleans with a flood where they broke a levee to flood a poor district so they could save all the old fancy homes.

    If that's the policy decision, fine, I guess, but the government should be on the hook for the poor home destruction.

    I have no idea the outcome.

  • Brett Bellmore||

    As I recall, it wasn't so much a matter of deliberately breaking the levee, as that they had spent the levee maintenance money on partying down.

  • JD85||

    He's referring to the 1927 flooding, when they did in fact blow up the levees on purpose.

    https://yatlagniappe.com/2014/02/16/ when-the-levees-blew-up-a- public-execution-of-a-community/

    To click the link, remove the space before "when" and "public"

  • Abdul Abulbul Amir||

    Bad on property rights? You might even think he was a developer from New York.

  • Jeff_Kleppe||

    Ilya must be getting his talking points from the media, what with the repeated references to the wall being "Trump's". Sorry, Ilya - the wall belongs to the American electorate. It was Trump's signature campaign promise and he was elected because of it.

  • Rev. Arthur L. Kirkland||

    Most Americans oppose a wall, largely because they recognize it to be unnecessary (America seems to have stumbled through a couple of centuries without it) but also because most Americans aren't half-educated, gullible bigots.

    Recent polls indicate that support for American (rather than Mexican) funding of a wall approximates 35 percent.

    Other than that, though, great comment, Jeff_Kleppe!

  • Jeff_Kleppe||

    America also stumbled through several centuries without penicillin, self-loading firearms, and heavier-than-air flying machines, and yet those are all instrumental to our national security today. But I suppose those are different for you, because reasons.

  • Rev. Arthur L. Kirkland||

    You figure walls are a modern invention?

    Or a necessary method of addressing a new problem?

    What are attempting to assert?

  • Jeff_Kleppe||

    What I am asserting is whether or not "America seems to have stumbled through a couple of centuries" without a piece of technology has no bearing on whether it is applicable and appropriate for our national security today. Our American ancestors didn't have to contend with 500,000+ people pushing across the border per year during their lifetimes, so I don't see how "we've never had a wall before" is an argument.

  • Rev. Arthur L. Kirkland||

    The number of border crossing has diminished over the years. Your argument is daft, save perhaps in the context of pretext that flatters bigotry.

  • Calidissident||

    I must have missed the section of the American Constitution where laws and appropriations are made by executive fiat rather than the elected members of Congress (with presidential approval absent a veto-proof majority). Even if we assume that Trump's 2016 victory boils down to "the wall" (which is highly simplistic; there are numerous things that can explain why Trump edged out a victory in 2016, and I think the wall was much more important in him winning the primary than the general election), the electorate didn't vote in a Congress with majorities supportive of the wall. And 2 years later they had a chance to correct that if they wanted to, and they ended up doing the exact opposite (and of course the same thing that was true in 2016 is true of 2018; obviously the Dems victory doesn't solely or even primarily boil down to opposing the wall. But at the end of the day Trump made his case for the midterms on immigration and his party was dealt a resounding defeat in the House).

  • California Dreamer||

    All of this begs the more interesting question: If the President declares a National Emergency, does he have the power to use eminent domain to seize the privately-owned land on the border and build a wall on it? In my view, the courts will have to answer that question very soon. As several posts have noted, the President promised his base that a wall would be built. (Yes, I know he said Mexico would pay for it, but that's irrelevant here.) If he declares an emergency and tries to build a wall and the courts stop him, he can shift the blame for failing to build the wall off of his own back and onto the shoulders of the judiciary. This creates a strong incentive for him to attempt to invoke those powers.

  • Sarcastr0||

    This seems the growing conventional wisdom on the left and the right. I don't think I buy it - that kind of radical action would not be without cost beyond whatever judicial slapdown occurs.

  • Rev. Arthur L. Kirkland||

    Look at the bright side, Sarcastro. If the yahoos start building a wall, their betters will get to demolish it in a couple of years. I would pay for a chance to participate. Who knows what someone who dislikes bigotry might contribute for a chance to knock down the goobers' half-baked wall? Plus, it would be fun. My fraternity once made a good profit for charity from selling sledgehammer swings at a junked car.

  • David Welker||

    "Yes, I know he said Mexico would pay for it, but that's irrelevant here."

    How could that possibly be irrelevant? Trump did not promise to fund the wall using taxpayer dollars, access to which he is currently being denied by Congress. Instead, he promised that he would not need appropriations by Congress because Mexico would pay for it. There would not even a shutdown right now IF this promise had been fulfilled.

    When politicians promise unrealistic things (there will be only benefits, but no costs to the policy I propose) then they also give up any mandate that winning an election might otherwise give them. If Trump had run on the wall AND said that taxes would increase to pay for it AND a majority of the American people had voted for him (only a minority did), then I think he would be entitled to a wall, as much as I personally believe it would be a huge waste of money. The American people are entitled to spend money foolishly. But that isn't what happened. Instead, what happened is that Trump promised a wall that would be free AND he was not able to even get a majority of people to vote for him.

  • Brett Bellmore||

    Actually, it was realistic to suggest that Mexico could be made to pay for the wall; The cost of the wall is a fraction of annual remittances from the US to Mexico, so a simple tax on remittances, possibly refundable on presentation of proof of legal residence, would be able to accomplish it. This has been obvious all along.

    The problem is that doing this required legislation. I don't think Trump understood during the campaign just how determined the GOP establishment was to make sure nothing effective was done about illegal immigration. Even before the Democrats took control of the House, any effort to secure the border that required legislative action was dead on arrival.

    I can excuse Trump for not realizing this would be the case, since Republican members of Congress were running on opposition to illegal immigration, right along with him. He should have known they were lying about wanting secure borders, but it's understandable that he didn't realize just how adamant they were about preventing it.

  • Sarcastr0||

    a simple tax on remittances, possibly refundable on presentation of proof of legal residence
    If we can't do it with terrorist financing, I'm not sure it's a simple as you think.

    I don't think Trump understood during the campaign just how determined the GOP establishment was to make sure nothing effective was done about illegal immigration.
    Is this peak 'Trump can never fail, he can only be failed?' Good lord, man.

  • Bob from Ohio||

    "If we can't do it with terrorist financing"

    "terrorist financing" is done clandestinely. He is talking about taxing things sent thru Western Union type companies and/or the regular banking wire structure.

    A tax on a wire sent to Mexico would be pretty easy too impose.

    Now, once you do, people might stop using the regular wire structure but if low enough, why would they? Other methods are more risky and carry their own costs.

  • EscherEnigma||

    How could that possibly be irrelevant?


    Because his base doesn't care.

    Until they do, it's irrelevant.

  • Krayt||

    the military version of eminent domain

    Seizure as spoils of war?

  • Antifed||

    "Less widely recognized is the fact that the wall policy is just part of a larger pattern of administration policy initiatives and legal positions that threaten property rights on multiple fronts." So land to fortify a national border is the same as land for private development? If you're a hammer, the world's a nail.

  • ThePublius||

    First, Prof. Somin doesn't ever reply comments as do some other bloggers on VC, I doubt he even reads them or care; he appears to be a propagandist.

    Second, he attacks Trump not for what Trump has done, but for what he imagines Trump might do, and also assigns to Trump responsibility for policies and practices of legacy departments like the DoJ, which continue implementing the policies of the previous administration despite Trump's policies and orders to the contrary.

    If Prof. Somin is sincere in his belief that we shouldn't have a border wall or fence, then why doesn't he as vociferously advocate for the removal of all CBP checkpoints and processes at airports, steamship terminals, and land crossings? This is the height of hypocrisy. Why have a CBP checkpoint on a highway to Mexico when down the border a mile or two one can enter unfettered? Why am I subject to entrance scrutiny at the airport, returning from an overseas business trip, when it's OK for others to wade across the Rio Grande with no scrutiny at all?

    (to be continued)

  • Brett Bellmore||

    I wouldn't say he never replies, but it isn't often.

  • ThePublius||

    (cont)

    In an organized, civilized country, borders serve very important and useful purposes. They prevent entry of criminals, the diseased, pregnant mothers intending to create US citizens, the indigent who come to enjoy government benefits; passage of contraband including weapons and drugs; and monitoring of goods subject to import restrictions, and enforcement of customs duty. You can't have customs and duties laws, and immigration laws, and a welfare state and have open borders, without doing harm to residents, taxpayers and the labor pool in the United States.

    A wall is a very effective, low-maintenance means of securing the borer to enforce our customs and immigration laws, and protect and preserve the rule of law and the health and welfare of our residents. I support an effective wall or fence. Don't call me a racist, bigot, xenophobe, rube, clinger, or whatever for this position; you have my reasons, above.

  • Sarcastr0||

    I like borders as well.

    Equating that with supporting a wall - and claiming a wall is effective and low-maintenance - is where I begin to wonder about you.
    Well, that and how much you dwell on ad-hominem at the OP and your political opposition versus substantive advocacy.

  • ThePublius||

    Do the math on border 1954 miles long, with a wall or without a wall. Without a wall - many options: patrols, drones, electronic surveillance (which still requires some way of apprehending illegal crossers). Any alternative I can imagine is going to much more expensive, short and long term, and the cost will inflate with everything else in the economy. Walls and fences work, as is evidenced by their ubiquity. And once you build a wall, you don't have to build it again tomorrow. And walls don't call in sick, shoot across the border, precipitate lawsuits, and so on.

    If there's a more effective and lower maintenance (i.e., financial factor) than a wall, please let me know.

    I don't dwell on ad hominem, I'm returning his rants against Trump in kind.

  • Sarcastr0||

    Border security != 100% seal the border. Never has.

    By that logic, we'd better stop all flights and inspect every cargo container. Security, donchaknow.

  • ThePublius||

    That's a ridiculous response. You are just being contrary. I never said border security equals 100% seal the border. But that's not a bad idea! That happens to be the point. We needn't stop all flights, but we take measure to prevent entrance of unauthorized people and contraband, make sure goods are properly accounted for, per customs regs., etc.

    If it's broken, fix it! If you support unfettered illegal immigration, fine, I get that. Don't agree. If you don't support illegal immigration, but don't want a wall, what's your enforcement answer?

  • jph12||

    "That's a ridiculous response."

    Well it's Sarcastr0. That's pretty much his thing.

  • Rev. Arthur L. Kirkland||

    Don't call me a racist, bigot, xenophobe, rube, clinger, or whatever for this position; you have my reasons, above.

    The best case for you is that you appease bigotry in the pursuit of stale and intolerant political goals.

  • ||

    If there's any legitimate use of eminent domain, it's for a border wall.

  • Alpheus W Drinkwater||

    Ha ha, the perfect illustration of what I've been saying. "The individual rights of other American citizens are less important than my policy choices." Spoken like a true American liberal.

  • ||

    You're a moron.

  • Rev. Arthur L. Kirkland||

    He's a moron.

    You're a right-wing bigot and an authoritarian malcontent.

    Nobody's perfect.

  • Red Rocks White Privilege||

    True. After all, you're a self-loathing hicklib with an 85 IQ, so I can understand why you're constantly trying to make people think otherwise.

  • Alpheus W Drinkwater||

    "He's a moron.

    You're a right-wing bigot and an authoritarian malcontent.

    Nobody's perfect."

    Ha ha...wait, what?

  • Bob from Ohio||

    Opposing all use of eminent domain is pretty radical.

    How many people oppose public use [fire station, road widening, border wall] as compared with public purpose [seizing then transferring to private actors, ie Kelo case] eminent domain?

    The Fifth Amendment recognizes that the federal government has ED powers.

  • Sarcastr0||

    Prof. Somin isn't opposing all use of ED that I can see...

  • ||

    Of course. He'd love ED if it was to seize buildings to set up USCIS stations to legalize every semi-retarded mestizo who walked in asking for citizenship.

  • ThePublius||

    If he opposes it for a border wall, in what case could he possibly support it? I have never seen a case of him supporting it.

  • Sarcastr0||

    That's still not proof of anything other than your reading into things, ThePublius.

  • BrotherMovesOn||

    You are so tiresome.
    "Go sell crazy somewhere else. We're all stocked up here."
    You are ruining this blog.

  • wreckinball||

    What?

    A border security wall is public usage. WTF, ED abuse is the Kelo type using ED to take land and hand it another private citizen.

  • ThePublius||

    I have a question for those who don't want a wall. Is it that you don't want to enforce immigration law at our Southern border, or is it that you don't think a wall is an effective or necessary part of border enforcement? And if the latter, how do you propose to enforce immigration law at our Southern border?

  • jph12||

    The wall is not an effective or necessary part of border enforcement that costs too much and requires the seizure of property from American citizens. While nobody's numbers are particularly reliable, a significant portion of illegal aliens coming to America are doing so legally then overstaying their visas, by some estimates up to 66%. The wall does nothing to reduce those numbers. Others are smuggled through existing ports of entry. Again, the wall does nothing to stop that. Far too much buck, for far too little bang.

  • ThePublius||

    jph12, thanks for your reply. However, that's not argument, it's simply being contrary. I disagree with all three of your non-factual assertions in your first sentence, and agree with the fourth statement, which is factual: yes, it will require taking property. no, it's not 'seizing,' which has terrible connotations, it's a legal taking for the good of the country.

    That it is not effective or necessary or costs too much are points of debate. I offer this. Walls and fences are effective as proved by their ubiquity. If walls and fences were not effective, the billions of dollars spent on them very year would be spent elsewhere. We wouldn't see them every day. They scale, too, from the fence arounds one's vegetable garden, to the one around one's home property, to the school playground, to the construction site, to the local prison, military base, and so on. Very effective. n the case of the Southern border, while many overstay visas and sneak through legal crossing points, there are large numbers of people coming across the border where it is unprotected. The number of people deemed inadmissible or apprehended at the Southern border has run in the range of about 15,000 to 65,000 people PER MONTH.

    (to be continued)

  • jph12||

    "However, that's not argument, it's simply being contrary."

    You didn't ask for an argument, you asked whether my opposition to the wall was because I didn't want immigration laws enforced or because I didn't think the wall would be effective. I think I pretty clearly explained that my opposition is based on the wall not being a cost-effective solution.

    "I disagree with all three of your non-factual assertions in your first sentence,"

    I didn't expect you to agree with them.

    "and agree with the fourth statement, which is factual: yes, it will require taking property. no, it's not 'seizing,' which has terrible connotations, it's a legal taking for the good of the country."

    No, it's seizing, and the terrible connotation is justified regardless of whether or not the purpose is for the good of the country. It's terrible anytime the many sacrifice the few for the benefit of the many, even if its a necessary sacrifice.

    "Walls and fences are effective as proved by their ubiquity."

    The question is not some metaphysical question about whether walls and fences are effective in some abstract sense, but whether building a border wall is an effective use of government resources.

  • ThePublius||

    (continued)
    One can view the Souther border illegal immigration problem as a trauma patient. The first course of action should be to stop the bleeding. Next, stabilize, seek emergency care, then ultimately long term care and rehabilitation. The bleeding analogy is even useful in detail: the steps are ensure your own safety, i.e., make sure you don't become the next victim; alert others for help; apply pressure at the bleeding site.

    A wall or fence is going to significantly slow down illegal crossings and possibly direct potential crossers into more focused crossing areas where the second line of protection may deal with them, i.e., surveilance and enforcement agents.

    Effective, yes. Necessary - apparently so, as the alternatives practiced to date have not stemmed the tide of illegal entrants. Too expensive? Compared to what? What is the vale of preventing disease, contraband - drugs, weapons; illegally imported otherwise legal goods (i.e., no duty); and people unauthorized to enter for a variety of reasons including criminality, health (disease), potential teroristic intent, and so forth; and, the taxation stress on Americans subsidizing welfare for those entering who cannot support themselves? I say $6B is a BARGAIN in comparison to the costs of unfettered illegal passage at our Southern border.

    (cont)

  • jph12||

    "A wall or fence is going to significantly slow down illegal crossings"

    This is one of those non-factual assertions you like to complain about.

    "I say $6B is a BARGAIN in comparison to the costs of unfettered illegal passage at our Southern border."

    The cost of the border wall is much more than six billion dollars. That's for about 250 miles of the wall, if we pretend the wall will be built on time and budget (it won't).

  • ThePublius||

    (cont)
    "According to a report published by Forbes, health care for 3.9 million illegal immigrants costs American taxpayers $18.5 billion annually. Of that total, $11.2 billion in federal taxes went to subsidizing care for illegal immigrants in 2016." (The government makes payments to health care providers for emergency services that are rendered to illegal immigrants who are eligible for Medicaid. This procedure helps ensure that reimbursement is available to the emergency care providers. Emergency rooms are required to treat illegal immigrants like other patients regardless of insurance status under the Emergency Medical Treatment and Active Labor Act.)

    Medicaid alone! Illegal immigrant children are entitled to and education, too. And while illegal immigrants are not eligible for many federal assistance programs, they are eligible for some, and there is rampant fraud, including identity theft, that taxes the system.

    On top of that, many progressive municipalities are providing taxpayer-funded benefits to illeglas, including free health care, most notable recently in NYC and San Fran.

    Enough is enough!

    I'd like to hear you substantiate your first three assertions.

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