Why this legal expert thinks Trump's fake emergency declaration could actually doom his border wall

Despite repeated warnings from those both outside and within his own party, President Donald Trump is moving forward with his plan to use a national emergency declaration to secure funds for his border wall.

But according to Charles McFarland, an eminent domain lawyer with the Owners’ Counsel of America, Trump's strategy could actually doom his hopes for the project.

The "rogue decision to secure funding through executive fiat (like a declaration of national emergency) could ironically give landowners the ability to challenge the project on grounds that were previously unavailable," McFarland explained in an NBC News op-ed in early February, before Trump's decision was formalized. "This would be a mistake with both immediate and historic consequences for his project and his presidency."

He noted that in general, the government's power of eminent domain is expansive. And since Congress has already passed legislation directing the government to construct "not less" than 700 miles of barriers on the U.S.-Mexico border, essentially everything but the funding is in place for the fences or walls to be built.

But, McFarland argued, by stretching his authority to get funding for the wall, Trump raises serious legal perils for the project. If Congress appropriated the funds as it does normally, it could use the Declaration of Takings Act to push passed many legal obstacles. The national emergency doesn't allow for that, as he explained:

But to take advantage of the quick-take process authorized by the Declaration of Takings Act, project funding must be appropriated by an act of Congress, not an emergency order. Thus, if President Trump funds his border wall project through executive order, he could lose a very favorable process for getting the project built.

Additionally, once Congress has granted authority for a project, judicial review of that decision is exceedingly limited. But, by proceeding under an emergency order, the president opens the door to public use and necessity challenges that would probably not be otherwise available to landowners under the existing legislative authority for the project.

On top of both of those issues, the ability to waive federal, state and local laws under the REAL ID Act may be lost if the president proceeds with an executive order, which could subject the project to immediate injunction and compliance actions under the myriad of environmental laws that could otherwise be waived.

Political issues compound the legal issues McFarland outlined. In addition to alienating some members of the Republican Party through an extreme exertion of executive power, Trump's attempted power grab also lessens the leverage over lawmakers to offer concessions on the wall. If the president is just going to try to unconstitutionally procure funds for the project, why should any Democrats or wall-skeptical Republicans go along with efforts to fund it through the traditional means?

And by pushing the project into the center of bitter legal fights with landowners, the president also exposes the project to much more public criticism. The legal fight over the wall will be extensively covered; the litigants having their land taken away by the government may get sympathetic portraits written up in the press. All this will eat away at whatever political capital Trump has left for the wall.

So while Trump and some of his supporters may see today as a big win for him, it may actually be the exact opposite. It could be the day he finally rang the death knell for the bigoted project.


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