The government is open again (at least for now), but the shutdown didn’t stop the Trump administration from working to take private land to make way for the border wall, even though there is no guarantee it will be funded and the shutdown postponed most federal lawsuits, except where a delay would endanger “the safety of human life.”
Land condemnation cases filed by the Department of Justice are currently pending in the Southern District of Texas, where President Trump wants to build 104 miles of bollard fencing. These federal cases, two of which were filed in January after the shutdown had already begun, continue to move forward, despite the fact that the fencing will only be built if Trump gets at least part of the $5.7 billion he is demanding.
To build the border wall, private land must be turned into public land. Many people don’t realize the government can legally take your land under what is called eminent domain, the power given to the government under the Fifth Amendment of the U.S. Constitution to take private land for public use for infrastructure, which usually means roads and bridges, or in this case, a wall along the U.S.-Mexico border. If built, the proposed border wall would cut across nearly 1,000 miles of private land, some held by the same families for generations.
The government may exercise the power of eminent domain only if it provides fair compensation to property owners, and landowners do have some recourse. They can dispute the amount the government is offering, say that the law the government is using to seize their land doesn’t apply, or file a lawsuit against the government.
Landowners have challenged this power with lawsuits since 2006, when President George W. Bush signed the Secure Fence Act that prompted a number of federal land purchases along the border. According to a 2017 Reason magazine report, the Bush Administration harassed property owners by threatening to sue them, and offering no compensation for doing so. Some gave up the rights to their land, thinking they had no other choice, but others refused and the lawsuits held up the process for years.
Unfortunately for Trump, many of the landowners who refused to sell their land to the federal government during Bush’s presidency are still refusing to do so today, particular when the government is taking the land before paying for it, a process known as a “quick take” eminent domain. Rep. Justin Amash (R-MI) introduced a bill to end this practice earlier this month.
The principle of eminent domain leaves many conservatives feeling conflicted, since they support President Trump but consider taking private land for public use to be a prime example of government overreach. According to a recent op-ed appearing in RedState, “The right of private property is a fundamental right of a free society because it enables people to be truly free and independent of their government.”
Long a fan of eminent domain, (he has used it numerous times to seize property from unwilling owners to build offices and entertainment complexes), Trump has even brought up using the military version of eminent domain – using the military to seize private land. While this would most certainly fly in the face of the principles that many conservatives hold near and dear, Congress, the courts and the military itself would likely balk at carrying out such an order.
According to legal experts, Trump likely cannot surrender eminent domain, which mandates him to establish a public use for the land and compensate landowners for it, by declaring a national emergency and using military funds to build the wall. But when asked how quickly construction could begin if he did declare an emergency, President Trump said this in an Associated Press report, “I think very quickly,” adding that while someone “perhaps” might sue to stop construction, “we would win that suit, I believe, very quickly.”