Courts

Can All Lawyers Just Admit The Wall Will Never Be Built Because Of The Fifth Amendment?

We're fighting about something that will never be built, and every lawyer knows it.

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(Photo by Justin Sullivan/Getty Images)

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

I know, when we talk to non-lawyers, “eminent domain” sounds like fancy “law talkin'” jargon. I know that the general public is so used to President Donald Trump violating all the norms and some actual laws that it’s hard for them to see how a mere Constitutional concept could possibly retard a committed president and his phalanx of hats.

But I feel like every time we talk about the wall, or the shutdown, or whether or not Trump can declare himself dictator-for-life to meet the “national emergency” of not getting what he wants, we do our friends, neighbors, and countrymen a disservice when we don’t mention eminent domain.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

People who risk losing their land to Trump’s Wall will go to court to defend “their property.” I mean, Jesus, have you ever met a Texan? From Talking Points Memo:

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The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

People need to understand, the government does not own a 2,000-mile long stretch of land between the U.S. and Mexico. The people who do own it, which includes privates citizens, farmers, and churches, do not want to sell it. The government will have to take it from them.

There is no “military eminent domain” that Trump can invoke, national emergency or not, that supersedes the Fifth Amendment. And the Fifth Amendment only allows for takings for public use and just compensation. People will fight the government’s definition of “just” compensation. People will fight the government’s definition of “public” use. There’s a whole part of takings canon that deals with whether or not the land is being taken in whole or only in part. People will fight by saying that their whole parcels are being commandeered by the erection of an ugly 30-foot physical barrier.

THIS WALL WILL NOT HAPPEN. There’s no conceivable way that the courts are going to let the government take all of this land, for a dubious public use, when less intrusive measures can be used to accomplish the stated public purposes, at a price point that the government is willing or able to pay.

Can we all just remember that? I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

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This. Entire. Wall. Thing. Is. Stupid.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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