Tag Archives: Fifth Amendment

That Pesky Thing Called Reality

There are plenty of reasons to oppose Trump’s “big beautiful wall,” and I’ve listed a number of them in previous posts. Most fall in the category of “if the wall were built, this is why it wouldn’t deter unauthorized immigration or drug trafficking.”

Less attention has been paid to the reasons such a wall won’t ever be built.   

As Elie Mystal recently wrote at Above the Law,

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

The reason for Mystal’s confidence can be found in the Fifth Amendment, which–among other things– prohibits government from taking private property without just compensation. That “takings clause” is why states have eminent domain laws.

Opposition to the use of eminent domain for any but the most obviously “public” purposes   has been a staple of Republican ideology, so I’ve been surprised that so few supposed conservatives have raised the issue.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

 We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

The government doesn’t own most of the land on which the wall would be built–it would have to “take” land from those who own it, and people who stand to lose their property to allow construction of the wall will almost certainly go to court. Talking Points Memo recently quoted a Texan whose property is at risk:

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

I couldn’t agree more with Mystal’s concluding paragraph.

I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.