“Many years ago there was an Emperor so exceedingly fond of a Great Border Wall that he spent all his money on his Wall. He cared nothing about reviewing his soldiers, going to the theatre, or going for a ride in his carriage, except to show off his Great Border Wall. Instead of saying, as one might, about any other ruler, 'The King's in council,' here they always said. 'The Emperor's at his Great Border Wall.'"
—With apologies to Hans Christian Andersen
Whether he knows it or not, by declaring a national emergency to build his wall President Donald Trump has doomed the centerpiece of his presidency to an eternity of fights in Congress and the courts.
Trump does not see or chooses not to see the naked truth that as a practical matter, the nature of eminent domain litigation and federal law will prevent him from ever assembling the land necessary to build his wall by the end of a second term, even with an emergency declaration.
Land assembly for any large project is difficult and takes a long time. It is difficult to find a comparison to Trump’s wall, which is 550 miles long and requires the acquisition of more than 1,000 private properties in Texas alone. But consider the notorious Kelo v. New London eminent domain case involving a relatively modest land assembly of 115 properties covering 90 acres.
The New London redevelopment project started with state funding for planning in January 1998, with the development plan approved in 2000. One hundred of those landowners voluntarily sold their properties. That was a good start, but there were 15 holdouts, led by Susette Kelo, the real-life central figure in the recent movie “Pink House.”
In the Kelo case, the city of New London had “quick take” authority under Connecticut law. It needed only to declare it wanted the land and pay into court what it determined was just compensation. The property was then immediately vested in the city.
One might think that a “quick take” would mean a quick end to the land assembly, but it did not. Kelo and her holdout neighbors fought the very purpose of the taking. They lost. The U.S. Supreme Court held for the government in 2005, but it wasn’t until a year later that she finally settled with the city. The city had first offered her $123,000 for her little pink house. In the end, she received total compensation of $442,155—not bad for someone who lost her case. She was allowed to keep her house, literally—it was relocated to another site in 2007. There were similar large payouts for the others who had refused to leave.
That’s almost a decade from plan inception to final land assembly … with “quick take.” As a postscript, today—more than a full decade later and almost 20 years since the project’s beginning—the redevelopment site stands empty. Nothing built.
But Trump’s situation is even worse. He has no “quick take” authority because the Declaration of Taking Act of 1931 enables a “quick take” only if there is legislative authority and the necessary appropriation for the project. The General Accounting Office’s general counsel has ruled that “The Declaration of Taking Act is not an independent grant of acquisition authority or condemnation authority.” The emergency declaration standing alone, without other legislative authority and specify appropriations for a border wall, does not provide the essential legislative and appropriations basis for using the Declaration of Taking Act.
And even if some court were to find Trump had “quick take” authority with his emergency declaration, there are scores if not hundreds of other Susette Kelos all along the border, ready to take up the fight and stop the wall, at least until long after any possible second term for this president. And maybe it will take three times the estimated costs, as it did with Kelo, to get them to move if they lose.
So by taking the route of an emergency declaration, Emperor Trump will soon feel the chill of his own naked reality that his wall, as a matter of law and politics, cannot be built in the foreseeable future.
Simsbury attorney Dwight Merriam is the Connecticut member of Owners’ Counsel of America, He co-edited "Eminent Domain Use and Abuse: Kelo in Context" (2006) and is a member of the Connecticut Law Tribune's editorial board.