The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.