In 2008, the George W. Bush administration, which had started building about 670 miles of border fencing on mostly federally owned land in Arizona, California and New Mexico under the Secure Fence Act of 2006, tried to seize an acre or so in Cameron County, Texas, that belonged to Eloisa Tamez.
Things did not go quickly.
Tamez fought the government in federal court. During seven years of litigation and negotiation, she became famous for resisting the border fence; the government eventually paid her $56,000 for a quarter-acre the fence sits on and gave her a code to open a gate so she can access her land to its south.
Imagine this playing out over and over again along the 1,300 miles of borderlands that President Donald Trump wants to wall up. Actually building the wall won’t be as easy as dashing off an executive order requiring it. The main problem won’t even be the $25 billion that some estimates say it could cost. Trump’s real difficulty will be in getting permission from property owners to build the wall — no matter how much money it takes — and the land wars that will bog down his plans.
Trump, who has cast himself as a master dealmaker, will need to coordinate massive voluntary sales of property near the border or negotiate easements for large swaths of land. Only about one-third of the land the wall would sit on is owned by the federal government or by Native American tribes, according to the Government Accountability Office. And much of that territory is already fenced.
The rest of the border is controlled by states and private owners. Estimating the costs of negotiated sales of all the territory at stake is difficult ahead of time, because the fragmentation raises questions about market value.
Costs aside, resistance is building. Landowners, tribes and Republican and Democratic lawmakers are on record opposing the wall. What happens if this resistance turns into outright refusal to sell land? Trump’s only option at that point would be eminent domain, which could prove to be even harder than cutting individual deals.
In trying to take land for the wall, the federal government would be held to time-consuming procedures that include consultation and negotiation with the affected parties before taking any action. Then the government would need to declare a taking and undergo condemnation proceedings.
The Fifth Amendment’s takings clause states, “Nor shall private property be taken for public use, without just compensation.” A long-standing interpretation of the clause allows taking property to build highways, bridges, airports and dams. As for a wall? It would probably pass muster, although resolving that question in federal court may take time. But the problems wouldn’t end there.
The takings clause also protects private landowners from uncompensated seizures. Owners who are subject to eminent domain to build the wall would have to receive compensation for its physical presence on their property. Determining just compensation is not easy in contested cases in which the land and property at stake are infrequently exchanged on the market. These legal processes take time to unfold and are unlikely to be resolved anytime soon if the government does act.
Tribal lands would be an even bigger obstacle. Most such land in the wall’s path belongs to the Tohono O’odham Nation, including a reservation that extends along 62 miles of the border in Arizona. Tribes have certain property rights under the Constitution and federal statutes. Many of their lands are held in trusts, which federal law recognizes as independent political entities. Trump would need a bill from Congress to acquire the tribal lands, which are protected by treaties and other statutory equivalents.
What is the result of all of this? Years and years of litigation.
As it happens, the president has plenty of experience attempting to seize land. In the mid-1990s, Vera Coking, owner of a house just off the boardwalk in Atlantic City, was subject to Trump’s wrath when he tried to persuade local authorities to condemn her property so he could construct a parking lot for the 22-story Trump Plaza Hotel and Casino next door. Trump lost this battle.
In 1994, he threatened to condemn five businesses in Bridgeport, Conn., to make way for an office and entertainment complex and lobbied city officials to exercise eminent domain. It didn’t happen.
The Supreme Court upheld the legality of takings motivated by economic-development concerns in a controversial 2005 decision in Kelo v. City of New London. The plaintiff, Susette Kelo, lost her Connecticut home in that debacle. After a legal saga that began in 1998, the result, in the end, was a failed development project.
The Great Wall of Trump could leave hundreds of Cokings and Kelos at risk of losing their property. Pressure for Trump to back down will mount; these types of land grabs spark public outrage. After Kelo, there was a state-led backlash: Within several years of the decision, most states had enacted legislation giving owners additional property protections.
Americans do not take kindly to threats to fundamental principles of property ownership, even if some of them like the concept of the wall and the immigration policy. The wall could lead to the backlash of the century: a resistance movement laced with political, cultural, social and economic consequences.
Gerald S. Dickinson is an assistant professor of law at the University of Pittsburgh Law School.