FederalImmigration & BorderIssuesAs the Border Wall Is Built, Eminent Domain Could Mean More Texans Lose Their Land

As the Trump administration moves forward with border wall construction, eminent domain could mean a loss of land for some Texans.
October 8, 2019
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At the end of September, U.S. Customs and Border Protection (CBP) announced that three new contracts had been awarded for the construction of 65 miles of new border wall across Starr, Hidalgo, and Cameron counties. 

What does this really mean for Texans who own property in these areas? 

According to the Fifth Amendment of the Constitution, the federal government is authorized to seize privately owned property in order for it to be converted for public use by way of an enumerated power known as eminent domain. 

If, however, the federal government chooses to exercise eminent domain, there are two conditions outlined by the Fifth Amendment for this power to be lawfully fulfilled: 

  • Landowners must be justly compensated for their property, and 
  • Seized property must be used for public benefit. 

Additionally, if citizens feel that their appraisal value is too low or that the statute the government is claiming doesn’t apply, property owners are legally able to argue the eminent domain claim in question.

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In most cases, this enumerated power given to the government is used for the construction of roads, public transportation, and other forms of infrastructure. 

Now, however, there are growing concerns among some Texans about how this authority is being used to seize privately owned property for the purpose of building President Trump’s border wall. 

Despite these concerns, though, this invocation of constitutional authority for the purposes of border infrastructure is not unique to the Trump administration. 

In fact, eminent domain for border security purposes has a decades-long history with some of the most notable impacts for Texans occurring in 2006 with the passing of the Secure Fence Act.

Through this legislation, signed by President George W. Bush and carried out under both the Bush and Obama administrations, eminent domain was invoked for the construction of more than 650 miles of fencing along the U.S.-Mexico border, leading to more than 360 Department of Homeland Security (DHS) filed lawsuits against property owners in California, Arizona, New Mexico, and Texas.

Further investigation by The Texas Tribune and ProPublica revealed that in many instances, the federal government did not give fair compensation to landowners, did not conduct formal appraisals, and issued offers that were less than what was deserved when seizing land under this act.

With the dust of the Secure Fence Act still settling for many property owners, some of whom have lawsuits that have yet to be settled, a number of lawsuits have been filed as a result of border wall construction under the Trump administration.

The Roman Catholic Diocese of Brownsville in Hidalgo County gained national attention in 2018 after taking legal action to keep border wall construction from imposing on the grounds of the La Lomita Chapel – a historic landmark near the Rio Grande that has been in existence since the late 1800s.

In an official statement, the Roman Catholic Diocese of Brownsville expressed their opposition to border wall construction by saying, “While the bishop has the greatest respect for the responsibilities of the men and women involved in border security, in his judgement church property should not be used for the purposes of building a border wall … such a structure would limit the freedom of the Church to exercise her mission in the Rio Grande Valley, and would in fact be a sign contrary to the Church’s mission.” 

In Texas, where approximately 1,200 miles of the nearly 2,000 miles of the U.S.-Mexico border exists and more than 90 percent of property along the border is privately owned, the Roman Catholic Diocese is not the only one to express concerns about eminent domain as it relates to the border wall.

Congressman Will Hurd (R-TX-23), whose district encompasses approximately 820 of the 1,200 miles of border in Texas, has openly expressed concerns over border wall construction and what it could mean for farmers and other constituents in his district.

“In the great state of Texas, we care about a little thing called private property, and there’s going to be over 1,000 ranchers and farmers potentially impacted if the government comes in and takes their land,” Hurd said in an interview on CBS in February.

Hurd does not deny that there is a border crisis, but instead advocates for investment in technology rather than a physical border wall as a means of enhancing border security.

Hurd’s district is also home to Laughlin Air Force Base,one of the nation’s premier pilot training facilities located in Del Rio. As such, the congressman also expressed his opposition to the diversion of funds away from military construction projects for border wall funding. 

Earlier this month, the Senate voted to block President Trump’s emergency declaration – a strategic move intended to designate border wall funding without congressional approval – in a 54-41 voted that included 11 Republicans. 

Despite this vote and certain opposition, both Texas Senators Cruz (R) and Cornyn (R) sided with the President by voting to support his emergency declaration over the border wall. 

Sen. Ted. Cruz (R-TX) also expressed his support for eminent domain as it relates to the border wall by saying, “Securing the border is a legitimate area for eminent domain where landowners would get reasonable and just compensation.” 

Altogether, there are four states with nine congressional districts total along the U.S.- Mexico border. 

Five of these districts are in Texas.

According to CBP, 71 miles of border wall construction have already been completed, 162 miles are currently under construction, and 276 miles are scheduled for construction, amassing for a total of more than 500 miles of new border wall system. 

Since 2017, CBP says they have received $6.2 billion from DHS, the Department of Defense (DOD), and the Treasury Forfeiture Fund for the construction of 334 miles of new border wall system, which is currently occurring in the El Paso, San Diego, El Centro, and Rio Grande Valley Sectors, as well as parts of Arizona near the California border.

Additionally, further construction is planned to begin in the Rio Grande Valley and San Diego Sectors in 2020. 

While eminent domain for border security purposes is not a new phenomenon, for border residents, it remains an unavoidable issue. 

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Sarah McConnell

Sarah McConnell

Sarah McConnell is a reporter for The Texan. Previously, she worked as a Cyber Security Consultant after serving as a Pathways Intern at the Department of Homeland Security – Citizenship and Immigration Services. She received her Bachelor’s degree in Political Science from Texas A&M as well as her Master of Public Service and Administration degree from the Bush School of Government and Public Service at Texas A&M. In her free time, Sarah is an avid runner, jazz enthusiast, and lover of all things culinary.