Building a wall along the southern border of the United States to minimize
unauthorized entry into the country via Mexico has been a hot button political
issue that pits Republicans and Democrats against each other to extreme ends.
Political outrage on this issue was a substantial factor that plunged the
federal government into the most extended shutdown of the nation’s
history. For 35 days, non-essential government agencies ceased operations
while the Trump White House stood off against congressional Democrats
about federal funding for a U.S.-Mexico border wall.
In addition to the turbulent political ramifications of constructing a
wall along the nation’s southern border, the legal implications
of doing so become particularly troublesome when parts of the wall would
run through private land of U.S. citizens.
One of the solutions that President Trump threw around during his campaign
was to use eminent domain for securing land from private landowners. This
article discusses the legal and political implications of using eminent
domain to oust U.S. landowners from sites the White House wants to use
for erecting its great wall.
Crossing Ideological Lines
Using eminent domain to eject U.S. landowners from their private property
is a sensitive issue for those with conservative-leaning political values.
Eminent domain allows the government to take private land for public use.
Many political conservatives consider eminent domain to be an example
of government overreach.
The founders of the U.S. Constitution were wary of the government’s
exercise of eminent domain. As a result, the Fifth Amendment of the Bill
of Rights included a restriction of the government’s power to employ
Under the Fifth Amendment, the government may not take the land of a private
individual for public use unless they are paid just compensation. Additionally,
the constitutions of the individual states place a similar limitation
on eminent domain.
Under Section 19, Article 1 of the California Constitution, “[p]rivate
property may be taken or damaged for public use only when just compensation,
ascertained by a jury unless waived, has first been paid to, or into court
for, the owner.”
Eminent domain has been used to take private property to undertake significant
infrastructure projects and to protect the health and safety of the public.
Theoretically, making property in the interests of national security would
be a valid purpose under which the White House might exercise eminent
domain to develop a border wall, so long as just compensation is paid
to the owner.
Finding the Money
Without significant funds appropriated for such an endeavor, the practicality
of using eminent domain as a means of building the border wall is virtually
For example, under California eminent domain procedure, the government
institutes a civil legal action against the private landowner to take
their property in exchange for just compensation. This implies spending
money on legal fees and for paying just compensation to landowners to
lawfully acquire any property necessary to construct a wall.
Alternatively, the White House could tap the military for building the
wall. With a significant portion of the federal budget dedicated to the
military, funding for the wall might not be an issue. However, employing
military efforts to construct a border wall is dubious considering that
the U.S. and Mexico are not at war. The political fallout of this approach
could be fatal to the White House and congressional Republicans.
Funding for the wall could come out of that part of the federal budget
dedicated to operating the Federal Emergency Management Agency. It appears
the White House is relying on this approach for building the wall. Not
long after losing the appropriations battle with Congress, President Trump
declared border security to be a national emergency.
California Eminent Domain Attorneys
If your property is under the looming threat of being taken by the government’s
exercise of eminent domain powers, you should hire a California eminent
domain attorney to advise you on your legal rights. At
Allen, Semelsberger & Kaelin LLP, our California eminent domain lawyers have the training and in-depth
understanding of California property law to help you obtain just compensation
for your private property.
To explore your legal options and rights, call Allen, Semelsberger &
Kaelin LLP at (888) 998-2031 or
contact us online today.