Border wall

How Biden Can Terminate Trump's Border Wall Project—And Save Money and Protect Property Rights in the Process

Joe Biden can easily stop further work on the wall, protect property owners against further takings of private property, and save money in the process. Additional steps may be tougher, but are still worth considering.

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One of the signature projects of the Trump era was the effort to build a wall on the US southern border with Mexico. In order to achieve that goal, Trump declared a "national emergency" and used that declaration and other legally dubious tactics to divert funds to pay for wall construction that Congress had refused to support. President-elect Joe Biden has vowed that "not another foot" of Trump's wall will be built once he takes office, and also plans to immediately terminate the state of emergency, and stop using eminent domain to seize private property for wall construction.

Biden can easily stop construction, protect property owners from further takings of their land, and save money in the process. By taking these steps, he could save federal money, and protect the property rights of thousands of people, all for the price of ending a project that causes great harm for little, if any, benefit. It is also likely that he can terminate the litigation over the border wall, thereby mooting out the Supreme Court's decision to review one of the lower-court rulings against the legality of Trump's funding diversions for the wall.

It should be emphasized that Biden can do all of the above even under the Trump administration's view of the legal issues involved. The Trump position is that the emergency declaration and the funding versions are discretionary decisions left up to the president. If so, that which one president can do, the next can just as easily undo. If on the other hand, the emergency declaration and the various funding diversions are actually illegal —as I and other critics have argued, and several lower court decisions have ruled (in the case of the funding diversions; no court has yet ruled on the legality of the emergency declaration itself), Biden would be on even firmer ground in terminating the wall project.

When it comes to terminating active eminent domain cases attempting to seize private property, the government always has discretion to withdraw such suits, at least until the time they are completed. That's basic eminent domain law.

Terminating the wall project in this way would involve some costs, including cleanup of building sites, and settlements with contractors. Nonetheless, the Pentagon estimates that termination would still save some $2.6 billion on net. That's only a tiny fraction of the gargantuan federal budget. But it's still better than nothing.

Moreover, that figure does not include avoiding harm to thousands of property owners who would otherwise have their land seized for the project. In order to fully implement Trump's vision, the government would need to take land from many thousands of private property owners, as well as conservation institutions and Native American tribes. As of November, the administration already had taken 109 properties (totaling 285 acres), and had plans to condemn another almost 5000 acres. Other owners were forced to sell through coercive "agreements" reached under the threat of eminent domain.

The administration has filed new takings cases since Trump's defeat in the November election, in an effort to get as much done as possible before Trump leaves office on January 20. But many owners are resisting condemnation, and such legal battles routinely cause delays long enough to ensure that the cases are unlikely to be resolved before Trump's term ends.

While owners are legally entitled to "fair market value" compensation for their land, that doesn't account for the "subjective value" that many have in their property, which goes beyond its market value. Moreover, the Department of Homeland Security has a long history of lowballing owners, and using various types of skullduggery to deny them even the fair market value compensation the law says they are owed.

Terminating Trump's border wall project would prevent further harm of this kind to thousands of people. While the GOP claims to be a party that values private property rights, Trump's border wall plan will—if ever completed—be one of the biggest federal-government land grabs in modern history.

As noted above, terminating the border wall project would also likely put an end to the otherwise upcoming Supreme Court case addressing the legality of one of the border wall funding diversions. It is hard to say which way the Court would have gone on this. But sadly, there is a real chance the conservative majority on the Court would have ruled for the government on either substantive or procedural grounds. Ending the case would leave in place several lower court decisions ruling against the legality of the funding diversion, as well as a valuable DC Circuit decision ruling (written by famed conservative Judge David Sentelle) that the House of Representatives has standing to challenge it. These rulings would serve as useful obstacles to similar skullduggery by future presidents, Democrat and Republican alike.

To make certain that the lower court rulings remain on the books, the Biden administration should reach settlements with the plaintiffs, rather than simply relying on the Supreme Court (or lower courts) to dismiss the cases as moot. Most likely, Biden need only give the plaintiffs what he himself has already said he wants to do: a promise to terminate construction and an admission that the funding diversions were illegal (the latter point is in line with Biden's own stated positions).

In some cases, the Supreme Court has stayed lower-court injunctions in wall cases, on various procedural grounds. But the Court hasn't yet ruled on the merits of any of these cases, and the injunctions will become irrelevant if the Biden administration terminates the wall-building project.

While Biden can easily block further construction and stop any ongoing eminent domain cases, it is less clear whether he can return land already taken by the government, but perhaps not yet used for building. I believe it should be feasible to return the latter if the new administration takes the (in my view, correct) position that these takings lacked proper legislative authorization, and therefore were illegal to begin with. However, I admit there may be angles I am missing here, having to do with procedural issues and perhaps with laws relating to the disposition of federally owned land.

Similar issues arise with the possibility of denying compensation to contractors for the termination of their building contracts, on the grounds that those contracts were illegal to begin with, because Congress never authorized funding for the projects in question, and Trump's diversions were illegal. My own tentative view is that the government has no legal obligation to pay anything to contractors whose contracts were illegal, because the money they were promised was never lawfully appropriated. Indeed, paying any money at all in such situation just compounds the illegality. That said, I am not an expert on the law of government contracts, and I admit I might be missing something here.

Finally, Biden has not promised to eliminate those barriers the Trump administration has already erected, and may well leave them in place. If so,  that would be a mistake. It would be better to have them torn down. If the federal government does not have any better use for the property in question, it should sell it to the private sector, and use the proceeds to pay down some small portion of the rapidly ballooning national debt. Here too, however, I am not certain whether the president has the legal authority to destroy or sell off current federal property, and will leave those issues to those with greater expertise.

Even if Biden does everything discussed above, this would not fully eliminate the problems exposed by Trump's 2019 emergency declaration and funding diversion. We would still need reforms to tighten up constraints on federal-government uses of eminent domain (including reforming the compensation system so as to prevent future low-balling of property owners). We will also still badly need reforms putting an end to permanent presidentially declared "national emergencies," along the lines recently proposed by Libertarian Rep. Justin Amash, and earlier by Republican Senator Mike Lee.

Biden cannot fix these broader problems on his own (even assuming he wants to). Addressing them would require congressional action, which I am far from optimistic will happen anytime soon. Indeed, some congressional Democrats might even welcome the opportunity to empower a president of their own party to use these powers for purposes more congenial to the political left.

That said, the best should not be enemy of the good. Terminating the border wall project is valuable in itself, and leaving lower court decisions against it in place would create useful precedents for the future.

 

 

 

 

 

 

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  1. My own tentative view is that the government has no legal obligation to pay anything to contractors whose contracts were illegal, because the money they were promised was never lawfully appropriated. Indeed, paying any money at all in such situation just compounds the illegality.

    Sorry, I don’t buy this at all. It’s way too legalistic. It may be a perfectly fine legal argument, but it’s still BS.

    If the contractors did work they had contracted, and expected to be paid for, they should get paid. It’s not up to them to delve into the legal niceties of the appropriations process before signing up.

    Trump has a long history of stiffing vendors. The US government shouldn’t follow that example.

    1. So if money is illegally appropriated to — say — WIC, the women who received WIC benefits have to refund the money?

      1. I mean, that’s literally exactly the opposite of what Bernard said.

    2. He wants contractors on notice that doing work for Republican administrations that the left opposes is going to be punished. It’s a policy entrenchment move designed to render it impossible for Republicans to do perfectly legal things Democrats oppose.

      That’s a bit more important to him than the legal rights of the contractors. Open borders really IS more important to Ilya than everything else, remember.

      1. He wants contractors on notice that doing work for Republican administrations that the left opposes is going to be punished. It’s a policy entrenchment move designed to render it impossible for Republicans to do perfectly legal things Democrats oppose.

        As usual, you ascribe the worst possible motive to someone you disagree with. Do you want me to put up again that quote from you about Manichean views?

        My guess is that he was thinking about this from a purely legal perspective and didn’t really reflect on the implications. I think it’s a trap lawyers sometimes fall into.

        1. In addition to what you said, Brett’s argument makes no sense. If the things are “perfectly legal,” then Ilya’s position would not work even if he would endorse it.

          1. No, Ilya is describing a pretext for stiffing the contractors. Note he didn’t say anything about the payments having been found illegal in court. Just that they’d be stiffed on the grounds that the payments would be illegal.

            He’s suggesting a basis on which Biden could screw over the contractors.

            1. You’re the one saying it’s a pretext.

      2. I agree with bernard11. Ilya is likely just being emotional and petty. He probably didn’t think it through.

        After thinking it through, I’d guess there’s only about a 60-70% chance he would continue to endorse the same policy with the diabolical intent you’ve suggested.

        1. Of course when a Liberal says something controversial he just didn’t “think it through”. A Conservative on the other hand……..

          1. Imaginary liberals have the worst imaginary double standards.

    3. Yep. If the contractors have a signed contract and did work relying on such, they get paid. Same if it’s an informal written go ahead. To do otherwise is unethical as hell.

      1. Do you think ethics matters? Or is it just another norm to be used for accusations against opponents?

        The same guys who keep defending using the FBI to spy on a presidential campaign won’t be bothered. Those contractors aren’t like them, so no need to treat them ethically. Their businesses can be destroyed.

        Does Antifa act ethically? No. Does Antifa destroy innocent bystanders’ businesses? Yes. Does the left care? No.

        1. Yes. I think ethics matters. And certainly the government acting on our (my) behalf should exhibit ethics. LOL I know but in a perfect world…..

          Did I say something to make you think I’m defending antifa? I detest the stinky criminal assholes.

          1. Not you. You’re not in charge of government.

            Leftists will be in charge of government. And the left ranges from evilly happy about Antifa’s crimes to … [whatever, change the subject]. Ethical behavior doesn’t make it onto their priority list unless they can pretend to care about it to advance another cause.

            1. Not everyone is so sure about the other side being evil, Ben.

              1. They should pay more attention then.

    4. “My own tentative view is that the government has no legal obligation to pay anything to contractors whose contracts were illegal, because the money they were promised was never lawfully appropriated. Indeed, paying any money at all in such situation just compounds the illegality.”

      Sounds like a massive lawsuit waiting to happen.

      1. The government generally can’t be estopped. So quasi contract remedies may be tougher to get against the government.

  2. This article is Exhibit 1 to anyone who says that Ilya supports legal immigration because the wall only prevents ILLEGAL immigration.

    And drug smuggling — let’s not forget that.

    And terrorist entry into the country — yea, that too….

    I wonder what Ilya would say if he came home and saw me sitting on his couch and watching his TV. My response would be “hey, you’ve got a nicer couch and a better TV than I do — so I walked into your house…

    And the ultimate irony here is that people purchased land on the border for the explicit purpose of making the government have to go through the eminent domain process to build a wall, and now they are crying about that…

    1. I don’t know that Prof. Somin has ever claimed to oppose illegal immigration. But since the wall would never have done much to reduce illegal immigration, and certainly not to an extent that would justify the costs discussed above, I don’t think opposing it shows anything more than good judgment.

      1. Perhaps you are right. It has been my observation that Prof. Somin favors all immigration. If it were up to him, anyone who wanted to could come here, any time, any way they wanted.

        I’ve seen nothing of his writings to suggest he is interested in protecting our country, or that he even appreciates that a nation is a people, not just a spot with lines around it on a map.

        1. We not only have withstood the invasions of linguine, egg rolls, Jameson, burritos, lutefisk, empanadas, pierogis, sushi, bagels, collard greens, pad thai, the Friday fish fry, and falafel, but indeed have been enhanced by the experience. Tacos, spaghetti, California rolls, and hummus is an unremarkable school cafeteria menu these days.

          If America needs to worry about anything. it’s our vestigial bigots, not our newest arrivals.

      2. “But since the wall would never have done much to reduce illegal immigration”

        An absurd claim contradicted by all of the experts and border patrol agents.

    2. The wall won’t prevent anything.

    3. How many terrorists have entered illegally through the southern border?

      1. Well, the US caught about a dozen a year from 2012 to 2018, which was the most recent publication I could find.
        This includes Hizballah members, Al Qaeda members, Al Shabab facilitators, KWP members, and a bunch of others.

        Here are specific names I found in one article of people convicted:
        Mahmoud Youssef Kourani
        Adnan El Shukrijumah
        Ahmad Muhammed Dhakane
        Abdullah Omar Fidse
        Anthony Joseph Tracy
        Said Jaziri
        Mukhtar Ahmad
        Muhammad Azeem
        Sharafat Ali Khan

        1. https://www.nationalreview.com/2019/01/yes-weve-nabbed-terrorists-on-the-southern-border/

          Even National Review is unable to conceal that those people mostly flew, and mostly had forged visas.

          Not going to be stopped by a wall.

    4. You’d never get in to Ilya’s house. He has walls. Probably locks his door and arms his security system too. And of course he would never invite you.

      But that’s different because Ilya matters to Ilya and you don’t.

      1. It’s different because Ilya’s house (like other people’s) is private property.

      2. “You’d never get in to Ilya’s house. He has walls.”

        And those walls are somewhat effective because they form a complete enclosure of Ilya’s house.

        Trump’s border wall will not even come close to being a complete enclosure of the US.

    5. And terrorist entry into the country

      I’ll remember that the next time a Mexican farmworker blows up a building in Nashville.

    6. Since Prof. Somin is a libertarian, I don’t think that he gets too worked up about “drug smuggling.”

      (And imaginary terrorists are really not going to sway him.)

  3. I’m not following how ending the project would save the government money, since Mexico is going to pay for the wall.

  4. Ah, but I think there will be lawsuits filed in order to continue wall construction, with the hasty cut-off being illegal under APA. Not that lawsuits involving the APA were routinely abused for the last 4 years. Nah.

    Turnabout is fair play.

    1. This isn’t a rule, it’s a direct executive action. It’s not done by an administrative agency or an executive department, so I do not believe APA would apply.

      Biden is a competent technocrat among other things; there will be court cases for sure, but I don’t expect his Admin to lose as many, absent some complete turnaround in Supreme Court precedent.

      1. DACA was an executive action too…

    2. My thoughts exactly.

  5. Obviously stopping the wall won’t save money. Border interdiction by personnel is an ongoing expense. Housing people waiting to be deported is an ongoing expense. Policing crimes caused by illegal border crossers is an ongoing expense. Schooling illegal alien children is an ongoing expense. Deportation for illegal border crossers is an ongoing expense. Etc.

    Walls make sense to non-zealots. That’s why every country with a border concern builds at least some section of wall. And why everyone everywhere uses a wall in every other situation where you want to protect something. (We all understand this, of course. Anyone saying they don’t is being dishonest.)

    1. The wall was pretty unpopular, so by your analysis it seems there are lots and lots of open border zealots in America.

      Also, of course, the wall would not have and does not address any of the issues you brought up, because it does not measurably reduce illegal immigration.

      1. Zealots and people engaging in outrage theatre, yes.

        And of course the wall addresses all those issues and measurably reduces illegal immigration. Zealots ignore the plainly obvious.

        1. Your proof is lacking – citations to ‘it’s plainly obvious!’ does not count.

          1. Your proof and mine are exactly the same then.

            Plainly obvious beats wishful emotional thinking — at least for non-zealots.

            If you’d like to provide data, that would help. (Then we’d know who was attempting to deceive us by comparing pandemic times with non-pandemic times and pretending not to know the pandemic makes the comparison deceptive.)

            1. The burden is on you, you made the statement.

              1. Ilya made the statement.

                1. No, we’re talking about your comment at December.28.2020 at 3:50 pm.
                  That’s not challenging Prof. Somin’s argument, it’s providing new and unsupported arguments.

                  1. Let me know when everyone starts proving each and every statement made everywhere in all cases. Then I may attempt to communicate in that manner as well. Until then, no double standards.

              1. Polling lost most of the little credibility it still had about 7 weeks ago.

                1. So just say whatever you want about what people think, because no one can prove you’re wrong, eh?

                  1. Just like everyone else does.

    2. ” Walls make sense to non-zealots. ”

      Listening to bigots try to justify Trump’s shambling wall-building has become tiresome.

      Tear it down.

  6. I also love how those on the left are terribly concerned about the poor surface owners who are gonna get screwed out of their land by the government claiming eminent domain.

    And yet we’ve got to do the Green New Deal RIGHT THE FUCK NOW!!! The amount of land condemned for the wall is round off relative to that that will be taken for the NGD. But, hey, fuck those landowners because this is a project we like.

    1. If you loved it you wouldn’t be moaning about it.

      1. Again no substance from Kirkland.

        But you don’t come here to make substantive arguments. You’re here only to spew your bigotry.

  7. The practical and moral question: Should a Pres. Biden (1) merely stop construction and perhaps tear some holes in the recent additions for wildlife migration or (2) tear down the entirety of the recent construction as a lesson to the bigots?

    I lean toward (2). Bigotry should not be rewarded. Show the losers who’s the boss.

    1. “tear some holes in the recent additions for wildlife migration”

      Racist dog-whistle?

  8. Tearing down the wall is a good start, but what about closing down the entire Border Patrol and ICE? And of course free health care to all residents of the country regardless of documented status.

    Choke on the progress, clingers!

    1. When the conservative bigots get cranky and disaffected, America is on the right path.

  9. I’d like to see Biden come out with a statement (and legislation from Congress, if necessary), saying, in essence,
    “Every single person or entity that had property taken by the federal govt to build the wall can buy it back at the price they were paid.
    “We’re sorry that we can’t give you guys extra money compensate you for the hassle, emotional distress, etc.; but you can get the land back, and the govt will pay for all costs associated with the transfer of title back to you.
    “We will reimburse you for all documented legal expenses and attorney costs.”

    If there is any hot-button issues on which conservatives, liberals, and libertarians agree, it’s: 1. Kelo was poorly decided, and also, 2. State and federal governments really misuse takings in many cases.

  10. “To make certain that the lower court rulings remain on the books, the Biden administration should reach settlements with the plaintiffs, rather than simply relying on the Supreme Court (or lower courts) to dismiss the cases as moot.”

    So, you’re endorsing “sue and settle”, too?

    1. No. That’s not at all what he said. I know you think you know something because you once read a tweet about “sue and settle,” but you’re not understanding the concept. He’s talking about cases where the courts already ruled.

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