Use this button to switch between dark and light mode.

Eminent Domain and Border Walls

April 04, 2019 (3 min read)

Beyond the political, social and environmental issues confronting President Trump’s proposed wall along the U.S.-Mexico border, there is a significant real estate challenge to consider. After all, portions of the physical wall will be built on private U.S. citizen property.

Enter Eminent Domain

Eminent domain is a power that’s been around for centuries in various countries. In simple terms, eminent domain refers to a government’s ability to take citizens’ private property (e.g., land) for public use. Public use usually means things like roads, buildings and utilities.

That may sound harsh, but the government isn’t taking the property without a bit of concern for the private citizen.

That’s because, in the United States at least, Uncle Sam is required to provide the citizen with just compensation. That’s a fancy way of saying the government will pay a fair market value for the seized property. It says so right there in the takings clause of the Fifth Amendment to the United States Constitution.             

But the Constitution was written over 200 years ago. How have the U.S. courts interpreted eminent domain since then? Let’s take a look at some key cases and how they could impact the proposed border wall.

Eminent Domain in the Courts

Perhaps the first test of eminent domain came in 1875’s Kohl v. United States. It basically confirmed that it was acceptable for the government to take private land in order to build public structures like court houses and post offices—with just compensation, of course.

Then there was Berman v. Parker in 1954. The decision expanded the scope of eminent domain by allowing the government to seize property and then transfer that property to a private owner—as long as there is an agreed-upon benefit to public welfare. In the case, the land in question was deemed a blight and the private owner promised to redevelop the land for the benefit of the public.

Building on Berman v. Parker was 2005’s Kelo v. City of New London, which further clarified the definition of public use. Similar to the Berman case, the goal here was for a private owner to redevelop blighted, vacant land that was seized by the government to benefit the public good.

Finally, the 1978 Penn Central v. New York City case helped more clearly define the nature of taken property. The decision prevented Penn Central from making specific modifications to the Grand Central Terminal building, due to the terminal’s historical landmark status. Penn Central had argued unsuccessfully that the landmark status designation and subsequent building restrictions had amounted to New York City seizing the property.

A Coming Legal Battle

So, where does President Trump’s border wall fall in this discussion?

The answer, of course, is no one’s quite sure yet.

The court decisions above illuminate the role of some of the proposed border wall’s legal entanglements. Certainly, Kohl makes it clear that, provided the public use standard is met, seizing the land may be acceptable. Diving deeper, Kelo and Berman may come into play when it comes time for the government’s legal team to establish what actual public use the wall satisfies. And if there are any unforeseen impacts from the wall’s construction on other private properties, the Penn case may become a factor as well.

The idea of public use may be a core element of the wall’s upcoming legal battle. Politics aside, an argument would have to be made that a wall would benefit the public at large. Because what’s good for one person may not be considered good by another (just take a look at the debates over oil and gas pipeline routes).

Another key facet of any eminent domain case is just compensation—a term that can have widely different definitions. For many folks, a real estate property’s value encompasses far more than what’s written on the deed. Ergo, for government officials working on the wall’s land acquisition, calculating the value for each piece of real estate presents a daunting task.

So, if President Trump’s team hopes to move forward with any eminent domain case, it has to ensure it can quantify a benefit to the public good—and get Uncle Sam’s checkbook ready.