Somewhat lost in the ongoing political debate surrounding the construction of a wall along the entirety of our southern border are the legal and practical implications of President Trump’s proposal: It will require taking thousands of acres of property needed for the project from private landowners.
Were Congress to pass legislation to implement and fund the border wall, those landowners would be left with few options to challenge the project. But a rogue decision to secure funding through executive fiat (like a declaration of national emergency) could ironically give landowners the ability to challenge the project on grounds that were previously unavailable.
To first understand why Texas landowners would bear the brunt of any decision to build a wall, and how they could use an emergency order against the administration, it’s important to know the history of efforts to secure the southern border. The previous iteration of border security, the 2006 border fence project under former President George W. Bush, resulted in over 300 eminent domain cases, 60 to 70 of which remain open today.
Why, though, were the federal government’s efforts focused on Texas in the first place? In 1907, President Theodore Roosevelt reserved a 60-foot-wide swath along the southern border of California and what is now Arizona and New Mexico to keep the land “free from obstruction as a protection against the smuggling of goods between the United States and Mexico.” Because of the Roosevelt Reservation, the federal government’s condemnation of land for the 2006 border fence project occurred mostly in Texas, where private ownership of land dates back to the Spanish land grants of the 1700s.
The same would be true with President Trump’s proposed wall.
Certainly, the federal government has the broad power to take private property through its exercise of eminent domain; the authority of the federal government to appropriate property for public uses has been held “essential to its independent existence and perpetuity,” and the federal government has the power to condemn property “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.”
Under the Depression-era Declaration of Taking Act, a federal agency can obtain title to property simply by filing a declaration and depositing the estimated amount of compensation with the court. To take advantage of this “quick-take” process, however, the federal agency must establish that Congress has both authorized the taking for a public purpose and appropriated funding for it.
Lost in the back-and-forth in Washington about the border wall, is that congressional authorization for the project was secured long before this administration through a series of legislative acts that culminated in the Consolidated Appropriations Act of 2008. That required the secretary of homeland security to construct barriers along “not less” than 700 miles of the southwest border.
Before that, Congress had passed the 2005 REAL ID Act, which empowered the same secretary to waive any federal, state or local law to expedite the construction of border barriers — including the Clean Air Act, the Endangered Species Act and the Safe Drinking Water Act. Stakeholders like the Sierra Club and others have traditionally relied on those laws to challenge or enjoin federal construction projects.
The result of these pre-Trump enactments is sweeping authority for the taking of land in support of the border wall project; funding is the only remaining obstacle.
The president has intermittently proposed issuing an emergency order to fund the wall without congressional approval. This would be a mistake with both immediate and historic consequences for his project and his presidency.
An emergency order would give him access to other funding for the project, apparently solving the appropriation issue. However, basing the authorization of the border wall project on a supposed emergency — as opposed to relying on the pre-existing congressional authorizations — will open the project to legal scrutiny and challenges from which it otherwise would have been insulated.
Congress passed the Declaration of Takings Act to expedite the use of eminent domain under specific circumstances in part because, in its absence, it can take years before the government is able obtain the right of possession needed to move forward with project construction through the typical condemnation process.
But to take advantage of the quick-take process authorized by the Declaration of Takings Act, project funding must be appropriated by an act of Congress, not an emergency order. Thus, if President Trump funds his border wall project through executive order, he could lose a very favorable process for getting the project built.
Additionally, once Congress has granted authority for a project, judicial review of that decision is exceedingly limited. But, by proceeding under an emergency order, the president opens the door to public use and necessity challenges that would probably not be otherwise available to landowners under the existing legislative authority for the project.
On top of both of those issues, the ability to waive federal, state and local laws under the REAL ID Act may be lost if the president proceeds with an executive order, which could subject the project to immediate injunction and compliance actions under the myriad of environmental laws that could otherwise be waived.
While the border wall funding issue may seem like a Gordian knot, the president is not Alexander, and his emergency order is not a sword — or, if it is, it’s a sword that creates knots instead of cutting them. By attempting to bypass Congress through executive order, President Trump will risk losing the protections and processes that made the project nominally viable.
We all know the president promised to build a wall. But his plan to follow through on this promise may provide opponents with their best arguments to stop it.