OCA Member Dwight Merriam: Emergency Declaration Could Blow up President Trump’s wall

The idiom “hoist with his own petard” is sometimes misconstrued to mean hoisted up. Not so. A petard was a medieval explosive device. To be hoisted with one’s own petard is to be blown up with your own bomb. President Trump is doing precisely that with an emergency declaration to build his wall due to the legal and practical impossibility of acquiring the property rights necessary to build a wall along the Southern border.

The history on this issue began in 2006 when President George W. Bush initiated a border fence project. The Secure Fence Act of 2006 authorized and partially funded 700 miles of border fence. When he signed the bill into law, President Bush said, “This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform.”

Acquiring more than 1,000 separate properties in 2006 through voluntary negotiation and the draconian power of eminent domain proved difficult. There were 334 eminent domain cases filed in South Texas, and 60 to 70 cases are still being fought in court a dozen years later.

Aside from the practical impossibility of assembling all the property for Trump’s wall and the hundreds or thousands of expensive lawsuits over compensation that would take decades to resolve, the real cost of such an effort is in social justice and equity.

The Texas Civil Rights Project has stepped up to protect the rights of individuals with few resources and little practical experience in defending their property rights. The government has made take-it-or-leave-it low ball offers for their properties and pressured them to sell.

The Texas Civil Rights Project has achieved real results and its director Efren C. Olivares received national recognition from the Owners’ Counsel of America for defending the property owners. Olivares has said: “If you don’t have a lawyer, you’re just going to get railroaded. We’re trying to make sure this isn’t going to happen.”

To understand why the emergency declaration is doomed to fail, we turn to the constitutional and statutory scheme for eminent domain. The federal government has the constitutional authority to take private property for a public use or purpose. Challenges based on public use would be difficult cases for the property owners to win, but there are good arguments that there are better alternatives than the wall.

On the statutory side, the fundamental power of the federal government to take property by eminent domain comes from an 1888 act providing that the federal government may “acquire real estate for the erection of a public building or for other public uses” and the Declaration of Taking Act of 1931 establishing the process for eminent domain takings.

Importantly, the Declaration of Taking Act enables a “quick take,” which is what we have in Connecticut under state law. The government files a declaration that it intends to take the property, deposits what it thinks the property is worth into court (almost always too little), and then takes possession. Without the quick take authority, assembling large numbers of properties for a major project is a nightmare because the very last holdout controls the entire project. The Declaration of Taking Act is absolutely necessary if Trump is to build his wall.

And here is Trump’s problem — the law has been read to require a legislative enactment and appropriation as conditions necessary for an eminent domain taking. The Office of the General Counsel of the General Accounting Office has made clear that the Declaration of Taking Act requires “a statutorily authorized purpose,” citing a legal case where the court said: “First, the court must determine that the condemnor was in fact authorized by the legislature to effectuate the taking.”

An emergency declaration by Trump would not be based on a “statutorily authorized purpose” by the legislature. He cannot use the Declaration of Taking Act to effect the quick takes of the land he needs for his wall. He may be relegated to going through state court proceedings.

Regardless, he will be bogged down in litigation for a near eternity and whether the wall is truly a public use or purpose will be up for debate in the courts.

So with President Trump having taken the route of an emergency declaration, he will be hoisted with his own petard.

Dwight Merriam is a lawyer practicing in Simsbury and is the Connecticut Member of Owners’ Counsel of America, www.ownerscounsel.com, a network of eminent domain lawyers committed to protecting private property rights.

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