One of the most important projects of the Trump era was an attempt to build a wall on the US’s southern border with Mexico. To accomplish this goal, Trump declared a “national emergency” and used that statement and other legally dubious tactics to divert funds to wall construction that Congress refused to support. President-elect Joe Biden has vowed that “no more foot” will be built on Trump’s wall once he takes office, and also plans to end the state of emergency immediately and cease using significant private property seizure domains for the construction of the wall.
Biden can easily stop construction, protect property owners from further income from their land, and save money in the process. By taking these steps, he could save federal money and protect the property rights of thousands of people, all at the price of ending a project that is causing great harm, if no benefit. It is also likely that he can end the border wall lawsuit, thereby undermining the Supreme Court’s decision to review one of the lower court decisions against the legality of Trump’s diversions for the wall.
It should be stressed that Biden can do all of this from the Trump administration’s point of view on the legal issues involved. The Trump position is that the emergency statement and funding versions are discretionary choices that are left to the President. If so, what one president can do, the next can just as easily undo. If, on the other hand, the urgency and the various funding diversions are indeed illegal – as I and other critics have argued and have ruled several lower court decisions (in the case of funding diversions, no court has yet ruled on the legality of Biden would be on even firmer ground at the completion of the wall project .
When it comes to ending active major domain cases attempting to seize private property, it is always at the discretion of the government to withdraw such claims, at least until they are closed. This is the basic domain law.
Finishing the wall project this way would incur some costs, including redeveloping construction sites and settlements with contractors. The Pentagon estimates, however, that the termination could save around 2.6 billion US dollars net. That is only a tiny fraction of the gigantic federal budget. But it’s still better than nothing.
Additionally, that figure doesn’t include avoiding harm to thousands of property owners who would otherwise seize their land for the project. To fully implement Trump’s vision, the government would have to take land from many thousands of private owners, as well as conservation institutions and Indian tribes. By November, the administration had already acquired 109 lots (285 acres total) and had plans to condemn nearly 5,000 more acres. Other owners were forced to sell through compulsory agreements made under the threat of a significant domain.
The administration has filed new cases since Trump’s defeat in the November elections to get as much done as possible before Trump leaves office on Jan. 20. Many property owners resist conviction, however, and such litigation routinely causes delays that last long enough to ensure that cases are unlikely to be resolved before Trump’s term ends.
While owners are legally entitled to “fair market value” compensation for their land, this does not take into account the “subjective value” that many have in their property that exceeds market value. Additionally, the Department of Homeland Security has a long history of lowballing owners using various types of skull digging to even deny them legal compensation for fair market value.
Ending Trump’s border wall project would prevent further such damage to thousands of people. While the GOP claims to be a party that values private property rights, Trump’s border wall plan – if ever completed – will be one of the largest federal government land grabs in modern history.
As noted above, the termination of the border wall project would likely also end the otherwise pending Supreme Court case addressing the legality of one of the diversions to fund the border wall. It is difficult to say in which direction the Court would have done this. Unfortunately, there is a real chance that the conservative majority of the court would have ruled in favor of the government for material or procedural reasons. Closing the case would leave in effect several lower court rulings opposing the legality of the diversion of funds, as well as a valuable DC Circuit decision (written by famous Conservative Judge David Sentelle) that the House of Representatives may call into question. These decisions would serve as useful barriers to a similar skullcap by future presidents, Democrats and Republicans.
To ensure that the lower court judgments stay on the books, the Biden government should reach an agreement with plaintiffs rather than simply relying on the Supreme Court (or lower courts) to dismiss the cases as in dispute. Most likely, Biden just needs to give plaintiffs what he has already said himself: a promise to finish construction and an admission that the diversion of funding was illegal (the latter point is in line with Biden’s own positions).
In some cases, the Supreme Court has suspended injunctions in Wall cases for various procedural reasons. However, the court has not yet ruled on the merits of any of these cases, and the orders will become irrelevant if the Biden administration finishes the construction of the wall.
While Biden can easily block further construction and stop ongoing significant domain cases, it’s less clear whether he can return land that has already been taken by the government but may not have been used for construction. I believe it should be feasible to return the latter if the new government takes the (in my view correct) position that these revenues did not have proper legislative approval and were therefore initially illegal. I admit, however, that there may be nooks and crannies here that I am missing that has to do with procedural issues and possibly with laws relating to the disposal of federal land.
Similar problems arise with the ability to refuse contractors compensation for canceling their construction contracts, as those contracts were initially illegal because Congress never approved funding for the projects in question and Trump’s diversions were illegal. My own preliminary view is that the government is not legally required to pay anything to contractors whose contracts were illegal because the money promised to them was never lawfully used. Indeed, paying money in such a situation only increases illegality. Even so, I’m not an expert on government contract law, and I admit that I may be missing something here.
After all, Biden has not promised to remove the barriers already put in place by the Trump administration and could well leave them in place. If so, that would be a mistake. It would be better to let them tear down. If the federal government cannot make better use of the property in question, it should sell it to the private sector and use the proceeds to pay off a small portion of the rapidly growing national debt. Again, however, I am not sure whether the President has legal authority to destroy or sell current federal assets, and I will leave these questions to those with more expertise.
Even if Biden did everything discussed above, it would not completely eliminate the issues exposed by Trump’s 2019 Emergency Declaration and the diversion of funding. We would still need reforms to tighten federal government restrictions on the use of significant areas (including reform of the compensation system to prevent future property owners from being brought to their knees). We will continue to desperately need reforms that put an end to the president’s proclaimed “national emergencies” as recently proposed by Libertarian MP Justin Amash and earlier Republican Senator Mike Lee.
Biden cannot solve these wider problems on his own (even if he wants to). Action by Congress would be required to address them, which I am by no means optimistic about will come soon. Indeed, some Congressional Democrats may even welcome the opportunity to authorize a president of their own party to use those powers for purposes more congenial to the political left.
However, the best should not be the enemy of the good. The completion of the border wall project is valuable in itself, and the decision of the lower courts on it would set useful precedents for the future.