On Jan. 25, President Donald Trump ordered “the immediate construction of a physical wall on the southern border.” His pledge to “build the wall” and make Mexico pay for it, was a big applause line on the campaign trail. In Texas, however, many are concerned about this plan, especially where I live in the Rio Grande Valley.
Many Texans are concerned about the cost of the wall’s construction, the effect on business with Mexico (Texas’ largest trading partner), and the environmental impact to cherished areas like Big Bend National Park. And south of San Antonio, it’s more personal. We’re worried about our land — the privately owned homesteads, ranches, small businesses, schools and churches that straddle the border. It’s impossible for the federal government to build a contiguous wall in Texas without seizing private property.
Texans are famously protective of our liberty. We’re also famous for refusing to go down without a fight. It’s in times like these that we like to say: “Come and take it.”
Lawyers at my organization, the Texas Civil Rights Project, and from around the Lone Star State are ready for a contested, protracted resistance alongside Texan landowners.
To take private property, Trump will need to rely heavily on eminent domain, the power of the federal government under the Constitution to take private property for public use. The Fifth Amendment places important limits on the government’s power, including the payment of “just compensation.” Determining what is just can be a challenge: A family’s rural, undeveloped ranch may have a lower purchase price than a golf course in densely populated Brownsville, but how does one account for the emotional value of land that has passed through generations?
For this reason, under the rules governing federal condemnation actions, a landowner who disagrees with the amount offered by the government has the right to a jury trial. As a practical matter, in cases involving land taken for a border wall, juries comprising members of our diverse community in the Rio Grande Valley decide just how much the federal government should pay their neighbors and local landowners.
These cases tend to be complicated, lengthy and expensive.
The legal community in South Texas knows this from personal experience because this won’t be our first rodeo. After Congress passed the “Secure Fence Act” in 2006 to authorize the construction of nearly 700 miles of fence along the U.S.-Mexico border, hundreds of eminent domain lawsuits ensued. As we learned then, even some Texas landowners who favor a border wall as a policy matter choose to go to trial in pursuit of the highest compensation possible.
When the barrage of eminent domain actions starts anew, we expect even more support from lawyers around Texas and nationwide. My team at the Texas Civil Rights Project is ready to train and deploy legal volunteers to ensure that all landowners have the representation they deserve, particularly those who are poor and/or lack the skills to successfully navigate the system. Our dual aim is to protect the liberty rights of Texas landowners while delaying construction of a wall that is offensive to communities and ineffective as a matter of immigration policy.
Regardless of one’s policy views, it’s important to understand that border wall litigation will be protracted and expensive, driving up the ultimate cost of the wall, likely to be borne by American taxpayers. Indeed, no matter the results of each trial, the government will owe money to the landowner — the question is just how much. On top of that, taking most (or even some) of these eminent domain proceedings through a full jury trial would severely strain the Texas federal court system — leading to a backlog and further increasing the time necessary to resolve the legal questions raised.
It’s no coincidence that, last time around, most of the 700 miles of border fence was eventually built in California, Arizona and New Mexico — not in Texas. Of the more than 1,250 miles of Texas-Mexico border, only around 100 miles of border fence currently exist. As of 2012, the federal government had reportedly paid out over $15 million to landowners in condemnation payouts, and vast stretches of Texas borderland remain in private hands. Moreover, some of the cases brought in 2007 are still pending today — 10 years later. Current estimates of the president’s proposal put costs between $15 to $25 billion — a cost that will surely increase with litigation.
This time, the resistance will be more organized and better prepared. Just like the Rio Grande, the road ahead for the litigation against Trump’s wall will face a long and winding course.