If You Build It, They Will Get Just Compensation

by Robins Kaplan LLP
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One thousand nine hundred fifty-four (1,954) miles: the length of the United States’ border with Mexico, and the possible future site for President Donald Trump’s infamous Great Wall. The Wall has been a calling card of the Trump Campaign since Day 1 and is viewed by Mr. Trump as a security measure necessary to prevent illegal immigration. Still, there are questions concerning the legality, practicality, and financial measures encompassing such a project.

First, from a practical standpoint, is the construction of such a wall possible? Yes. In fact, Trump’s Great Wall would not even be close to the longest in the world. Instead, much to the chagrin of the Republican Nominee, the Great Wall of China easily exceeds [or, “trumps”] the length of the proposed border wall by over eleven thousand (11,000) miles. 

But while construction of the Wall is possible, there are myriad logistical hurdles and legal repercussions of such an expansive project, not the least of which requires covering the terrain of eminent domain proceedings.

Currently, six hundred thirty-two (632) miles, or thirty-three percent (33%) of the border consists of federal and tribal lands under U.S. Government control. The remaining sixty-six percent (66%), however, would likely require a little Government magic. In October 2015, Mr. Trump told Fox News’ Bret Baier, “I think eminent domain is wonderful” and “I think eminent domain for massive projects – for instance, you’re [going to] create thousands of jobs and you have somebody that’s in the way and you pay that person far more – don’t forget, eminent domain, they get a lot of money.” Still, if history is any indicator of the hurdles that the Trump Presidency will face in deploying eminent domain tactics, then Texas and Arizona property owners have plenty of time to schedule the moving trucks.

In 2006, Congress passed the Secure Fence Act, which called for roughly seven hundred (700) miles of the U.S./Mexico border to be fenced off at vulnerable points. Specifically, the Act provided for the construction of double chain link and barbed wire fences with light and infrared camera poles. The Act fell short in its application, however, as the $1.2 billion approved by Congress quickly dried up, and led many in Washington to advocate for closing the Congressional checkbook. Further, the Act’s application of eminent domain authority on roughly five hundred property owners led to over a decade of litigation involving or individuals forced on a long journey for their constitutional right to just compensation.

To the extent Mr. Trump has indicated that Mexico will pay for the Wall, this a topic better left to political pundits. Currently, there are more questions than there are answers regarding Mr. Trump’s proposed construction of the Wall. Still, as more information becomes available, it will be addressed and help eminent domain practitioners determine whether or not there is a Texas or Arizona Bar Exam in their future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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