Eminent Domain

April 20, 2019 —

In the past two months, there has been a dramatic increase in the amount of funding allotted for the construction of a wall along the border between the U.S. and Mexico. A significant portion of that funding is expected to pay for 722 miles of wall construction, including the purchase of privately owned properties in Arizona and Texas that straddle the border.

The Takings Clause of the Fifth Amendment
Though political struggles over funding for the wall have grabbed headlines, negotiating property sales will be no small feat. In Texas alone, at least 95% of the land along the border is privately owned.What happens to landowners who are not interested in selling their property? That’s where eminent domain comes in. Eminent domain allows the government to take private land for public use. However, the Takings Clause of the Fifth Amendment goes further: private property cannot be taken for public use without “just compensation.”

To some it may seem like an overreach of government authority, but eminent domain is a legal process consistently upheld by the Supreme Court. It has also long played an essential role in everything from infrastructure to the national parks system. Without the power of eminent domain, federal, state, and city governments’ ability to build bridges, roads, tunnels, public parks, and complete other beneficial projects would be severely hindered.

Unhappy Landowners
Using eminent domain for border wall construction is not new. For example, the Secure Fence Act of 2006 authorized the construction of 700 miles of fencing along the border, and the reaction to it illustrates that people aren’t always happy about forcible takings of their land. When President George W. Bush signed the act, it led to more than 360 lawsuits in less than a year. Many of these suits are still pending today, over a decade later.

One of the major sticking points for landowners is the concept of just compensation. When the government seizes land for a public project, it typically drives down the value of other land in the area. The devaluation of property values makes it more difficult for owners to negotiate a fair price. Eminent domain laws also allow the government to seize private land before reaching a sale price, putting the landowner at a further disadvantage.

Potential Changes
Earlier this year, Representative Justin Amash of Michigan introduced the Eminent Domain Just Compensation Act (EDJCA). This act would ensure that private property owners receive fair compensation if the federal government takes their land for border security or enforcement activities. “It is unjust for the government to seize someone’s property with a lowball offer and then put the burden on them to fight for what they’re still owed,” said Amash, upon introducing the legislation. “My bill will stop this practice by requiring that a property’s fair value be finalized before DHS takes ownership.”

A Unique Complication
As the Department of Homeland Security and Department of Justice gear up for a new round of lawsuits for this current border wall, another potential obstacle looms. Some legal experts say that in bypassing Congress and declaring a national emergency, the Trump administration may have limited the government’s ability to move forward with construction. Congressional approval is required for the federal government to seize land by eminent domain. If lawmakers push back and vote against the land seizures, it would bolster the legal challenges by property owners who refuse to sell, causing extended delays.

A Slow Process
Even amid the confusion of budgets and funding deadlines, one thing is clear: eminent domain itself is a slow, complex process. The Washington Post recently estimated that finishing the entire span of the border wall could take at least ten years. And with most eminent domain lawsuits averaging three and a half years to settlement, seizing land at the border will account for a significant portion of that timeline

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This article originally appeared in the April 20, 2019 issue of Wide Angle, our regular newsletter designed, we hope, to inform rather than inflame. Each edition brings you original articles by Common Ground Solutions, a quiz, and a round-up of news items — from across the political spectrum — that we think are worth reading. We make a special effort to cover good work being done to bridge political divides, and to offer constructive information on ways our readers can engage in the political process and make a difference on issues that matter to them.

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