The border wall is moving onto private land

If you get most of your news from the New York Times, the Washington Post or CNN you probably already know that there is no new border wall construction going on. At least, that’s what they’d like you to think. In reality, as we’ve discussed here previously, dozens of miles of walls, barriers or whatever you want to call them have been going up either as new construction or significant improvements to previous barriers. But pretty much all of this construction has been taking place on federal land, national parks and similar real estate.

That’s about to change. As of this week, meetings were scheduled to formally begin the process of taking private land along the border, primarily in Texas, to hasten the construction process. And you can be sure that at least some of the current owners aren’t going to be happy about it. (NBC News)

The Trump administration is preparing court filings to begin taking over private land to build its long-promised border wall as early as this week — without confirming how much it will pay landowners first, according to two officials familiar with the process.

Jared Kushner is hosting a meeting with military and administration officials at the White House this Friday, where they are expected to discuss the U.S. government taking over private land to build more sections of wall along the U.S.-Mexico border, said two officials.

The commanding general of the U.S. Army Corps of Engineers, Lt. Gen. Todd Semonite, is expected to attend, as are two assistant defense secretaries for homeland defense, Kenneth Rapuano and Robert Salesses.

How quickly this proceeds will depend largely on how much the President wants to keep with past precedent in eminent domain cases and whether or not his declaration of a national emergency on the Mexican border holds up in court. Typically, the government would negotiate with landowners in advance and try to agree on a price before invoking the takings clause. But under the Declaration of Taking Act, particularly during an emergency, the federal government can move forward with the taking of the land and work out the details of the payment as they go.

As regular readers likely know, I’m not a big fan of eminent domain in most cases, particularly now that we live in the era of Kelo v. City of New London. (Arguably one of the worst decisions in the history of the court.) But the harsh reality is that there are proper applications of the takings clause, specifically when the land is to be put to actual public use. This has traditionally been done for the construction of roads, water treatment plants and similar projects.

In this case, guarding the border is a legitimate duty of the federal government and a significant barrier is the surest way to minimize illegal crossings and crimes associated with such activity. As such, I’m forced to conclude that this is a legitimate application of the takings clause. Granted, it would be far preferable if every landowner along the border is offered a fair price for the land and voluntarily agrees to the transaction, but the stubborn ones can’t be allowed to leave gaps available for illegal trafficking just because they disagree with the administration’s policies.

Hopefully, such cases will be few in number, and most people will be fairly compensated for the land that is taken from them. But the inevitable raft of lawsuits that are on the way may very well bog down the process for months.