As President Donald J. Trump takes his demand for a “border wall” to extreme limits, ranchers and private property owners in the path of that proposed wall worry about the government’s dictatorial right to seize their land and property through the law of imminent domain.
Both the Constitution of the United States and the Texas Constitution recognize imminent domain—the right of the federal and state governments to take private property for public use.
Imminent Domain is Attribute of Sovereignty
The U.S. Supreme Court in 1879 held that the concept of imminent domain does not actually require “constitutional recognition” because “it is an attribute of sovereignty.”
The U.S. Department of Justice, however, has pointed out that the Fifth Amendment to the U.S. Constitution stipulates that private property cannot be taken “without just compensation.” Article I, Section 17 of the Texas Constitution requires the same protection.
The Supreme Court in 1897 said “just compensation” means the federal government must pay the owner of the seized property the fair market value of the property.
Texas law restricts imminent domain to a governmental entity and a private entity vested with the authority to condemn property by the state legislature after a two-thirds legislative vote.
Imminent domain in Texas has three prerequisites: 1) the state or private entity must be authorized to condemn property for seizure; 2) the property must be taken for public use; and 3) the state under Texas Property Code, Section 21.042, need only to provide the property owner with “adequate compensation” based on a fair market value of the condemned property.
Property Owners Sue to Block Wall
The Trump administration plans to build a “wall,” or any acceptable barrier, along 104 miles of the Texas-Mexico border in the state’s Rio Grande Valley. Dozens of lawsuits have been filed by Texas property owners trying to block the seizure of their land by the federal government acting solely to achieve President Trump’s raw political objective to “build a wall.”
Vox news reported on January 18, 2019 that U.S. Justice Department attorneys are still working through the Trump government shutdown to seize Texas private property.
The Texas Civil Rights Project in working on three lawsuits in the U.S. District Court for the Southern District of Texas trying to block this wholesale land grab by the Trump administration. In one of those lawsuits, reported Vox news, U.S. District Court Judge Micaela Alvarez stated that it was her understanding that government attorneys were ordered to continue working on the land grab during the government shutdown. One of DOJ attorneys responded to the judge: “This is all I am allowed to work on.”
Texas is historically a proud property rights state. In order of individual importance, property follows only God and family in the Lone Star State. And Rio Grande Valley property owners along that proposed 104-mile border wall whose property is subject to seizure are mad as hell and ready for an Alamo-style fight by rejecting any “fair market value” offers made by the government.
Landowners Rejecting Fair Market Offers
One of those landowners, Eloisa Cavazos, was quoted in a January 10, 2019 Associated Press report as saying: “You could give me a trillion dollars, and I wouldn’t take it. It’s not about money.”
The Trump administration has plans to immediately bulldoze its way through at least 33 miles of land in the Rio Grande Valley authorized by Congress.
Besides landowners, a 19th century chapel and environmental groups are fighting the administration with lawsuits to stop his congressional authorized bulldozing.
Worse yet, the current government shutdown, in part, is because Trump wants to add an additional 111 miles to his “wall” beyond the 104 miles his administration has already designated in the Rio Grande Valley.
The inherent sadness and tragedy of the Wall is that President Trump is wall illiterate. The president has made himself a laughing stock on the international and national stages by believing a Wall already exists around San Antonio (which is 150 miles from the border) and that Nashville is located in New Orleans.
Texas Tops List of Abuse of Imminent Domain
Scott Bullock, a senior attorney with the Institute for Justice, in March 2002 said in a report that listed Texas as one of the ten worse states abusing imminent domain: “If citizens band together, they can stop the bulldozers. Much of the abuse happens at the local level, so community organizations can be particularly effective in applying pressure to local governments.”
Many border Texans are prepared to do just that.
A Harvard CAPS/Harris poll released December 28, 2018 showed that 56 percent of Americans oppose President Trump’s wall while the Fort Worth Star-Telegram recently reported that 61 percent of Texans oppose the wall.
Against the wishes of most Americans and even more Texans, President Trump is determined to have his politically promised Wall, regardless of whom and how many law-abiding people it harms, even destroys. The Texas A&M School of Law has observed:
“Texas landowners recognize that the state’s population is growing at a rapid pace. There is an increasing need for more land and resources such as energy and transportation. But, private property rights are equally important, especially in Texas, and must be protected as well. Eminent domain and the condemnation process is not a typical “willing buyer” and “willing seller” transaction; it is a legally forced sale. Therefore, it is necessary to consider further improvements to the laws that govern the use of eminent domain so Texas landowners can have more assurance that this process is fair and respectful of their private property rights when they are forced to relinquish their land …”
There is nothing fair about what President Trump is trying to do to Texas border landowners. He plans to continue the false narrative of a “state of emergency” crisis along the Texas-Mexico border to justify the wholesale theft of Texas land for his unnecessary wall. Unnecessary forced relinquishment of land through the governmental power of imminent domain is criminal theft, pure and simple.