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Eminent Domain and The Great Wall of President Trump


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 eminent domain.

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 nonexistent.

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.