(Photo by Justin Sullivan/Getty Images)
Last week, the president declared that in order to build his much-desired border wall he is considering using “the military version of eminent domain” to immediately seize private land. Many of the president’s supporters will of course cheer at this notion and think property rights should be overcome in order to build the wall. But for many others, including myself, this was just another in a long line of egregious attacks on property rights by this president.
When it comes to “the military version of eminent domain” specifically, the president is likely referring to 10 U.S. Code § 2663 which does allow for the acquisition of land by the military. In order to exercise this law, however, the president would need to show the land seizures relate to certain military purposes of national defense.
The justification for a border wall is primarily based on repeated claims that it would benefit national security by preventing drugs and people from crossing the border illegally. The glaring problem with these assertions however, is it can be shown that most drugs are smuggled into this country through legal border crossings that already have barriers and armed guards. Furthermore, unauthorized border crossings do not account for the vast majority of people here illegally either.
Therefore, as a practical matter, it would be very difficult to argue that seizing vast amounts of private land is necessary when it cannot be shown the seizures will alleviate the claimed national security concerns in any material way. The caveat to these practical issues, however, is the modern trend in policy and the law that has diluted private property rights in favor of vague and broadly worded state interests.
For example, in Kelo v. City of New London the U.S. Supreme Court held private property may be seized for “economic development” even if — and here is the kicker — the government cannot prove the claimed economic benefit will ever happen. In other words, in order for government seizures along the border to occur, it is not at all clear (to me at least), whether the president’s reasons must be provable.
Ultimately, the policy desire to use a “militarized version of eminent domain” is just one part of a broader assault on property rights that deserves more attention. For example, few may know that ICE has seized over one million websites with zero due process all while demonstrating a complete disregard for the law as it relates to copyright and trademark infringement.
What has gained some attention is the expansion of civil asset forfeiture under the current administration. This expansion has come at the great expense of state’s rights through a program called “adoption policy” which, as Radley Balko has explained, undercuts the fundamental principle of federalism:
The adoption policy is an end-around the state legislatures. It’s one thing if an investigation involves significant participation between federal and state or local law enforcement, and that investigation produces forfeiture proceeds to be divvied up. Such investigations comprise a broader class of forfeitures that are known as “equitable sharing” cases. They’re still problematic, especially if it’s a civil forfeiture that doesn’t require the state to produce any actual criminal charges. But adoption cases are much more pernicious. The sole purpose of the adoption policy is to give police agencies a way to ignore state law. It was devised to let local cases become federal cases with little to no involvement from actual federal law enforcement officials.
This is why the Obama administration tried to phase out the program. As I pointed out at the time, then-Attorney General Eric Holder’s plan to phase out the adoption policy would affect only about 5 to 6 percent of federal civil forfeiture cases. But it would end the policy in states where the legislature (and, presumably, the people) had tried to pass laws protecting people from unjust forfeitures. That’s important. For all the criticisms from police groups and conservatives that the Obama administration didn’t respect “states’ rights” (I prefer the term “federalism”), this was a policy that did exactly that.
Of course, many are to blame for the dismal state of property rights in the modern era. As I pointed out before, the legal doctrine of eminent domain has strayed far from its original purpose of serving the public interest. However, the current administration has undeniably accelerated this trend and worse, reversed policies that offered greater respect to constitutional rights.
It cannot be stressed enough the sheer amount of private land that would need to be seized for the border wall if the president’s plan to use eminent domain succeeds. Thousands upon thousands of citizens would have their property taken by the government in order to build a wall already proven to be ineffective at preventing the claimed harms it is supposedly designed to limit.
Before the awesome power to strip someone of his or her property right is utilized, the constitution demands a healthy measure of government accountability. No provision in the Bill of Rights, including the Takings Clause, is absolute. The best check, and one the Founders readily accepted, was a demand the state at least prove the claims it is making before stripping someone of a constitutional right. So far, the claims and analogies defending the necessity of seizing private land for a wall fall far short of satisfying what should be a much more respected burden.
Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.
The Disrespect Of Property Rights Has Accelerated curated from Above the Law
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