Border wallLegal experts: Emergency declaration may not be quickest way to build wall
Even if President Donald Trump gets his way, eminent domain lawyers say a variety of legal issues would arise surrounding private land seizures that could delay wall construction for years — and even derail it entirely.
In declaring a national emergency to build a border wall last month, President Donald Trump described the move as the fastest path to construction — and Texas is one of the administration’s top priorities for the next round of barrier building.
But as the U.S. Senate prepares to vote on the declaration — and Trump readies his veto pen — legal experts say that even if the president gets his way, a variety of legal issues could delay wall construction for years and even derail it entirely. Even under an emergency declaration, they say, a president doesn’t have free rein to take land for a border wall — partly because, according to several experts, the declaration makes the legal questions surrounding land seizures even murkier.
Under normal circumstances, the federal government has extraordinary eminent domain powers. If it wants to seize property, landowners are virtually powerless to stop it. But several attorneys and academics who specialize in eminent domain law said that’s only if Congress specifically authorizes the condemnatio or the project that requires it.
“By trying to run around Congress’ authority … [Trump is] inadvertently jeopardizing his whole project,” said Texas-based eminent domain attorney Charles McFarland, who represented a border landowner facing condemnation for past wall construction.
The outcome of the political struggle in Washington — and the many lawsuits challenging the declaration — is particularly relevant for Texas border landowners.
The administration has declared the Rio Grande Valley, which has recently seen the highest number of unauthorized border crossings, as a priority for wall construction. Some of the first segments of Trump’s wall are already under construction there, paid for by funds Congress authorized last year. And unlike other border states, where the federal government already owns much of the border land, the vast majority of border property in Texas is privately owned, meaning the federal government will have to seize it before it can build more barriers there.
