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Trump: Can He Just Take the Land to Build His Wall?

If you say “The Wall” anywhere in the United States, whoever you’re talking about will almost certainly know what you’re referring to–the wall along the border of Mexico which was one of President Trump’s most frequent talking points during his campaign for the presidency.  The controversial topic of building a wall of dubious use and dubious necessity, estimated to cost in the tens of billions of dollars, has also been accompanied by equally controversial claims that the wall would be paid for by the Mexican government.  With statements out of Mexico fairly unequivocally stating that this will never be the case, the wall has moved forward but with U.S. taxpayers footing the bill.  In fact, even before President Trump was officially inaugurated, the Department of Homeland Security had already begun sending of Declarations of Taking seizing land along the border by eminent domain.

trumpThis isn’t the first situation where the government has sought land along the border–about a decade back the Bush administration seized quite a bit of border territory to build fencing under the Secure Fence Act of 2006.  The letters already sent to those along the border state that the Department of Homeland Security will be taking the land from property owners–with at least one letter offering $2,900 for approximately 1.2 acres of land.  Those receiving the letters have stated that they feel like they have no recourse in the face of these letters, either because they believe they have no rights or because they simply fear facing the awesome force of the Federal Government.

However, not all have felt this way.  As the letters continue to roll out, several property owners who would be effected have sought legal help and have ongoing cases against the government.  Understanding your rights in the face of eminent domain proceedings requires an understanding of the complex area of law which is government takings.  With in mind, let’s take look at when and how the government may seize private property, as well as the sorts of legal actions you can take in response to such a taking.

What is an Eminent Domain Proceeding?

Under the Fifth Amendment and the Takings Clause of the Constitution, the U.S. government has the power to take property from private citizens under the principles of eminent domain.  The government does this through a process known as condemnation–marking specific property for destruction, modification, or government use.  However, the government does not have the power to go around taking property randomly–although the power of the Takings Clause is broad. For the government to take private property, they must show that they are taking the land for public use and must provide the owner with just compensation for the taking.

There are two types of government takings. The first form is simple: any time the government physically occupies any portion of privately owned land that is a taking. This includes both temporary and permanent occupation of property.

The second form of taking is a bit more complex-regulatory takings.  This is where the government passes a law–usually a law regulating the use of land–which removes all (and I do mean all) viable economic uses for a piece of property.  But it gets a little more complex from there with the courts looking to whether a regulation interferes with investor-backed expectations for use of the property, what reasonable uses existed for the property, and whether a law has greater effect on some property owners than on others.

Once a government action is established as a taking, they must justify it as taken for the public use.  A government official can’t take private property for their own private use, the taking must benefit the public and someway.  However, benefit the public in some way is essentially where the analysis ends.  From court to court exactly what makes a taking for public use may vary to some degree.

So we have a taking and it’s for the purpose of public use, now the government has to provide just compensation. Where the full property is taken the government must generally pay the fair market value of the property as if the owner were to sell their property to a purchaser at the time the condemnation was issued.  The same is true is a regulation removes all economically viable use from the land.  Where the government only takes part of a property, there a couple of approaches the courts will take.  It is most common however to look at the difference in the value of the property before and after the condemnation occurs and simply require the government to pay the difference.

What are Kind of Legal Actions Come Up When the Government Seizes Land?

So we’ve seen the way eminent domain seizures work, now what are your rights in the face of a condemnation action?  The first thing you’re almost certainly asking is the same thing those along the Texas border have been asking in the media–can I stop the government from taking my property?  Unfortunately, this is a particularly challenging thing to do if the government can establish a public use for the property it is taking.  You are basically required to prove that your losses from the taking would be greater than the overall benefit to society created by the public use for which the land is being taken.  This is not only extremely hard and complicated to establish, it is also rarely the case.  Thus, while you can and should seek your day in court on the issue if you believe you are being treated unfairly, the government will usually get its way once it begins a condemnation proceeding.  However, where you do succeed the courts can grant an injunction preventing the government from taking your property.

The more common ways of challenging a condemnation proceeding strike at the basic requirements on the government to show that any given taking is constitutional–public use and just compensation.  A case attacking public use would essentially argue that the government has no good reason which benefits society behind their taking.  However, given the direction case law has gone in regards to what constitutes a public use, this is a hard point to succeed on barring clear abuse of the takings clause.  For example, despite the controversial nature of the wall Trump intends to build, it is very unlikely that any of the property owners along the border could challenge a taking on grounds that the wall has no public use–even if they personally opposed the idea of building a wall or wanted to bring evidence that the wall would not achieve its stated purpose.  The government can almost certainly establish that the wall has a reasonable public use of some sort–from security to immigration reform.

A few of the lawsuits from along the border of Texas deal with something very rarely seen in eminent domain proceedings–treaty rights.  A few property owners own property in the floodplains of the Rio Grande.  A treaty between the U.S. and Mexico forbids the building of any structures which could displace floodwaters into nearby communities.  One or two lawsuits have alleged that takings by the U.S. government to build a wall on this land would not satisfy public use requirements as they would violate this treaty.

Sometimes, the Best Answer is the Simple Answer

Perhaps the most common way to challenge a condemnation proceeding is to say that the government is not paying you enough–they haven’t provided you just compensation.  This is much easier to establish, simply show how much your property was worth and show that the government didn’t give you that much.  This is the path most of the lawsuits from property owners along the border have taken.  As you might imagine, many don’t consider $2.9K just compensation for over an acre of land.  The actual value of acreage in Texas varies substantially depending on where it is purchased.  However, in many places it can go for much more than the government has offered here.

While it is not particularly the case for those along the Texas border, there have been many situations where the government commits a taking but does not acknowledge that taking.  In this case, a property owner would need to bring a lawsuit against the government saying they have taken their property–a process known as an inverse condemnation proceeding.  This requires the person bringing the party bringing the lawsuit to establish that a taking has in fact occurred, and they have not been justly compensated.

The property owners along the Texas border, their property being condemned and purchased on the taxpayers’ dime, certainly have rights in the courts.  They can and should challenge any taking that does not appropriately compensate them.  However, it is unlikely that these property owners will be keeping their land.  It is much more likely that the costs of taking this land from these private owners will simply be another expense on the many billion-dollar pile that Trump’s wall is posed to cost.

Jonathan Lurie


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