It hasn’t been in the news very often over the last year or so, but it should have been. The President’s year-long rhetoric of “build the wall” left many, many, many questions well outside simply, “Is it the right thing to do?” or “Would it even be effective?” (Two important questions worth asking, but hardly the only ones.) Yet as we move another month into The Administration’s regime, it is about time to give it some publicity.
A story in the Texas Observer noted that just a couple months into office, The Administration has already begun sending out notices of condemnation. Those people received a similar notice under President Bush, but held off just long enough that President Obama could take office and make wall building less of a priority. The use of eminent domain for the sake of building the wall under this regime comes as no surprise, of course. All the while he kept repeating that catchphrase, those with a knowledge of how this stuff works wondered how prepared the President would be to literally take Americans’ property by force. To date, there has still been a discomforting lack of in-depth analysis of the border wall on the environment or the economies and property values of border towns. Would an ugly wall decrease the value of homes in such a place? Are they preparing to ignore treaties with Mexico forbidding building on flood plains, so as to avoid flooding communities? These are just a couple of questions worth asking before committing to spending billions of dollars building and maintaining the wall indefinitely.
Eminent domain is one of the most controversial tools in the federal government’s arsenal. It has always been a philosophically problematic thing, since it’s first use in America, which pre-dated the United States as a Constitutional republic. It was a source of conversation when crafting the Constitution. The Fifth Amendment specifically states, “no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment offers citizens some protection against the government taking their land, but it is still interesting in that it actually does grant it the power and authority to do so. There are stipulations, of course, but then again, “just compensation” has not always been particularly so fair.
Kohl v. United States in 1876 was the first time a case against eminent domain went to the Supreme Court. It was used to seize land in Ohio for the purposes of building a post office and other government buildings. Justice William Strong argued in affirmation of eminent domain, “Such an authority is essential to (the State’s) independent existence and perpetuity.” Essentially, the Court said that it would be unreasonable if an individual’s private property ownership prevented the government from acquiring land to be used for functions only the government could perform. (To be clear, this is a very, very boiled down version of the ruling.)
The right of eminent domain has been reaffirmed on a number of occasions, including United States v. Great Falls Manufacturing Company in 1884, United States v. Gettysburg Electric in 1896, General Motors v. United States in 1944, all the way up to the concisely named 480.00 Acres of Land v. United States in 2009. Point being that eminent domain has always been controversial, and generally has always upheld in the Supreme Court.
However, as uncomfortable as the legal authority to seize land against an individual’s will might make us, it cannot be merely dismissed as useless. Traditionally, eminent domain has been used by local and state governments, as well as the federal government, for key public services. Indeed, the Fifth Amendment specifically states that private property shall only be seized for “public use.” Historically, this has meant construction of things like post offices (Kohl v. United States), aqueducts (United States v. Great Falls Manufacturing Company), public parks (Shoemaker v. United States), subway and highway infrastructure, or even for production of war materials (Sharp v. United States). Eminent domain has been used for some critical public services. In all honesty, we likely wouldn’t have fundamentally crucial infrastructure like highways, and we definitely would not have treasures like national and state parks without it. Without question, there have been plenty of positive results of its deployment.
However, we can (and should) always question whether eminent domain is ever actually necessary. In certain circumstances, it is possible that alternatives are present, and the government simply would rather flex its legal muscle. It asserts its authority to expedite the process. Additionally, it should be inherently questionable that the arbiter of how much a property is worth is the government itself. In effect, the government gets to force you off your land if they deem it necessary, then gets to determine what is “just compensation.” Hardly seems a particularly fair system at its core, and for a people long leery of too much government authority, this is one of the most egregious powers that has had the steadfast backing of the Courts. Even more, there have frequently been questions about the inherent fairness of the way it is employed, with government officials finding construction areas away from the wealthy or politically connected. Instead, they have usually targeted poorer and less connected areas, go figure. It is policy that also dramatically impacts those individuals who thought they had rights and freedom from government tyranny. Yet here, their government actually has the Constitutional authority to take their land, just so long as it is for public use and the citizen is compensated.
The obvious question about eminent domain for the border wall is, “how does it pertain to public use?” There is no real answer to that. It is easy to see how the public will use things like subways, schools, post offices, or parks. How, exactly, is any citizen supposed to “use” a wall? Even some of the most debatable cases of eminent domain for public use still can see some slightly more tangible benefits. In 1954, Gwathmey v. United States upheld the federal government’s authority to use eminent domain for the sake of building Cape Canaveral. Of course, the “public use” of a NASA launch site is itself debatable, yet as a government agency, NASA is required to engage in projects that are valuable and beneficial to the public, as deemed by the Space Act of 1958. Freeze drying foods, water filters, long distance telecommunication systems, solar energy, ventricular assist devices, improved tires, artificial limbs, adjustable smoke detectors, soles with shock absorption, chemical detection systems, fire fighting equipment, and various other software upgrades have all been invented or dramatically improved upon by NASA. So while Cape Canaveral itself might not be a thing the public will use directly, it is a key component to the success of the organization’s mission, which does produce very recognizable goods and services.
The border wall will not provide any tangible, positive benefits for the public to use. (Indeed, it could see some devastating long-term effects on property values, even if construction sees a temporary boom in demand.) Whereas a national park is something people can visit to enjoy, and Cape Canaveral is used to launch research missions to provide material goods and services for the public’s benefit, the border wall’s only potential positive is that it “keeps out illegal immigrants.” That’s it. The “public use,” then, is simply, “making sure non-Americans are not getting in.” It’s hard to even know how beneficial that even would be to the greater US economy and its natural population. You might not ever use the post office today, or the subway, or find yourself needing defense in a courthouse, but not using those does not actively harm you. With the wall (mixed with the dramatically increased and terrifying deportations), the lack of those people it’s intended to keep out might actively harm entire industries like agriculture.
There is one more aspect to this. In 2006, President George W. Bush signed Executive Order 13406, an executive order designed to offer some limited protections for American citizens. The order’s primary function was to prevent eminent domain being used for “the purpose of advancing the economic interest of private parties to be given ownership of the property taken.” 13406 is interesting in a modern context for two primary reasons. First, it changes the language slightly, adding a purpose of, “benefiting the general public.” In the case of the border wall, it is obvious The Administration will argue that limiting illegal immigration is inherently for the general public’s benefit. However, given that the President has all sorts of business connections and has not divested the way he should have, there will be huge questions about who he contracts to construct the wall. If he uses eminent domain to seize private lands for the wall, then hires companies that he owns stock in, that would be a monumental conflict of interest, and very much a violation of the law. At the same time, historically, eminent domain lawsuits have rarely (if ever) gone against the government. Despite this potentially gigantic problem, it is still hard to imagine a Supreme Court case in which they rule against the federal government on this issue.
This all ties into a great philosophical question, especially for the conservative Republican party. For ages, they have argued for smaller government and less federal authority. They have claimed to be the party of personal responsibility, individual liberty and freedom, and for the government to stay out of our lives as much as possible. And yet, they will be forced to defend a practice that has fundamentally served to undermine every single one of those principles (although, yes, eminent domain has mostly been employed by local and state governments, not the federal). How can they argue for all of those things at one moment, then turn around and defend the federal government seizing privately owned land? More, where does this authority even come from? The Constitution clearly implies the power exists, but some (like Thomas Jefferson) argued that it was a remnant of a time when lands were deemed property of royalty. Is the very idea of eminent domain an anti-republican one? Of course, both parties have a long, storied history of employing eminent domain; it is just unclear how the current Republican party in charge reconciles that power with their political ideology.
Amalganational 
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