In declaring a national emergency to build a border wall last month, President Trump described the move as the fastest path to construction — and Texas is one of the administration's top prioritiesfor 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 presidentgets 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 academicswho specialize in eminent domain law said that’s only if Congress specifically authorizes the condemnation, 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.
The U.S. House has already voted to nullify the emergency declaration and its fate in the Senate is uncertain — though even if the upper chamber also votes to nullify it, Trump is widely expected to issue his first-ever veto.
But Ilya Somin, a law professor at George Mason University who specializes in eminent domain law, said that will only be the first of manyhurdles Trump must clear.
For one, he said it’s uncertain if the statutes Trump cited in his emergency declaration actually allow him to spend money on wall construction.
Somin said that Section 2808 — a federal law Trump invoked in his declaration that allows for the diversion of military funds for construction in the event of a war or emergency — “specifically indicates that you can only spend the money in the case of a national emergency where it’s necessary to use the armed forces.
“Here it’s clearly not necessary,” he said, but acknowledged thatthe Trump administration may cite its recent deployment of the military to the border as evidence that the armed forces arerequired.
Still, even if Trump is authorized to spend money for wall construction, Somin said he doesn't believe Section2808 authorizes the use of eminent domain because previous U.S. Supreme Court rulings say that power has to be authorized by Congress.
"So even if he can spend money, it doesn’t follow that he can use that money to condemn property,” Somin said, adding that the administration would then be limited to building the wall on land the federal government already owns.
Nick Laurent, an Austin-based eminent domain attorney representing several Texas border landowners facing condemnation for thewall construction that's already been authorized for the Rio Grande Valley, agreed that it's unclear whether Trump can legally divert money from other parts of government to condemn land for a wall. Laurentsaid a 1952 ruling by the U.S. Supreme Court that barred President Harry Truman from seizing private property under an emergency declaration “will certainly come up as an issue.”
