The Trump administration has made building a wall along the southwest border a cornerstone of its overall agenda. The proposed wall has generated intense debate, and Congress—even while under unified Republican control—has repeatedly refused to appropriate the amount of money demanded by President Donald Trump to fund the project. At the end of 2018, the standoff resulted in the longest government shutdown in American history.
As President Trump continues to blatantly misappropriate government funds—including $3.6 billion in money allocated for military construction—to build the wall, he has ignored an equally important element: land. Building the wall will require seizure of thousands of acres of privately owned land along the border. Existing laws, namely the Fifth Amendment and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, allow the government to seize land for public use—specifically, the IIRIRA allows the government to construct border fencing. However, while Trump has referred to eminent domain as “a wonderful thing,” past experiences with the 2006 Secure Fence Act prove that massive government land takings generally are neither well-received nor easy.
This land is your land, this land is my land
The Fifth Amendment allows the federal government to seize privately owned land under two conditions: 1) The owner of the land must be justly compensated; and 2) The land must be used for the public benefit. Traditionally, eminent domain has been invoked in order to build public infrastructure or to establish public parks. In 1996, the IIRIRA was enacted, broadly and punitively increasing the immigration enforcement powers of the federal government and allowing the government to buy or seize land “adjacent to or in the vicinity of an international land border.”
In 2006, Congress and the Bush administration enacted the Secure Fence Act, which sought to address border security by requiring the building of hundreds of miles of fencing and other barriers along the southwest border. In order to implement this legislation and build the new fencing, thousands of acres of land were seized. This resulted in more than 300 lawsuits, approximately 60 of which are still pending more than 10 years later. Today, the Secure Fence Act serves as an example of how the government’s wall-building activities fell short of both the stated goals and the law. An investigation by The Texas Tribune found that the U.S. Department of Homeland Security circumvented laws related to fair payment and paid settlements to the wrong individuals, while the U.S. Department of Justice seized property before confirming who the true owners were.
Currently, 1,350 miles of the southern border is unfenced. President Trump has waffled on how long the border wall will be: He first proposed fencing 1,000 miles of the border but has scaled this back, more recently claiming to focus on “high priority locations.” This land belongs to more than 1,000 private landowners, including Native American tribes. The Tohono O’odham Nation owns 2.7 million acres of land in southern Arizona, which extends beyond the border into Sonora, Mexico. While the tribe has cooperated with the efforts of Customs and Border Protection and Immigration and Customs Enforcement in the past, leading to an 84 percent decline in apprehensions of undocumented migrants on its land, it staunchly opposes a wall for “many cultural, environmental, and historical reasons.” The proposal has also generated high-profile lawsuits, including disputes involving the Catholic Diocese of Brownsville and the National Butterfly Center.
The Diocese of Brownsville is challenging the proposed wall because it would bisect land containing La Lomita Chapel, a historic 19th-century religious building. The diocese claims that construction of a wall contradicts “Catholic teachings to accept and embrace refugees and asylum seekers.” In a separate case, the National Butterfly Center is concerned about the environmental damages the wall would cause, as well as the larger implications of government overreach. It has filed a lawsuit seeking to halt the construction of a wall that would divide the center’s 100 acres of land, “with as much as 70 percent of the land inaccessible between the wall and the Rio Grande.”
High cost for low benefit
The wall itself will be astronomically expensive. The Office of Management and Budget estimates that constructing just 234 miles of a steel wall will cost at least $5.7 billion, with maintenance costs estimated to be at least $864,000 per mile per year. Fencing for the entirety of the U.S.-Mexico border is estimated to cost $59.8 billion, significantly more than the $8 billion price tag Trump estimated during his campaign. The environmental costs are enormous as well: The wall will compromise the habitats of more than 62 endangered species, disrupt protected lands, and exacerbate flooding. The barriers built under the Secure Fence Act have caused flooding in both Nogales, Arizona, and Nogales, Sonora, causing millions of dollars in damages to property.
Just this week, DHS issued waivers for multiple environmental laws in order to allow repairs of existing fencing in Arizona and New Mexico. This signals a continuation of the Trump administration’s deep disregard for the environment and endangers both current and future residents of border communities.
The anticipated expenses will be compounded by the costs of forcibly seizing land under eminent domain law. Restitutions related to the Secure Fence Act were costly; the median payment made to landowners was $12,600, but payments ranged as high as the $1.1 million awarded to the Nature Conservancy. And these costs don’t include the taxpayer money spent on legal fees. Although it is challenging to project the costs of legal proceedings related to Trump’s proposed wall, it is likely that they will exceed the condemnation costs of the Secure Fence Act, given how much land and how many landowners are involved.
A wall for what?
While the IIRIRA and the Secure Fence Act open a legal path for eminent domain proceedings, claiming lands for the border wall still fails to offer a genuine public benefit. President Trump has claimed that a border wall is necessary in order to minimize migration, control illicit drug flows, and promote domestic security. However, the facts contradict his claims. Many migrants entering along the southwest border today are seeking asylum due to violence, persecution, and ongoing instability in Central America. They have been presenting these claims at ports of entry when possible, but the administration’s policies of metering and Remain in Mexico have made that increasingly difficult. The Trump administration has pushed asylum seekers to enter the United States between ports of entry so that they may surrender to Border Patrol agents and petition for protection. Existing fencing has done nothing to discourage them from asserting their rights under U.S. law. In fact, because current fencing is located up to a mile inland from the actual U.S.-Mexico border, some asylum seekers today are crossing onto U.S. soil and waiting on the far side of the pedestrian fencing until they can be apprehended by Border Patrol agents. Without tackling the root causes pushing children and families out of Central America in the first place, a wall will do little to stop them from coming. However, Trump’s shortsighted decision to cut foreign aid to Central America will likely only result in worsening conditions on the ground and a continued exodus of asylum seekers out of the region.
In addition, Trump’s attempts to link migration to crime are blatantly incorrect; immigrants are less likely to commit crimes than native-born individuals, regardless of documentation status. Regarding the drug trade, the vast majority of illicit drugs are entering the country via legal ports of entry, meaning that a wall won’t have a significant impact. At the end of January, for example, Customs and Border Protection made its largest-ever bust of fentanyl: 254 pounds of the drug were seized from a truck carrying cucumbers at the Nogales port of entry.
Trump’s border wall proposal is deeply flawed and misguided. It fails to effectively address the issues about which he claims to care, including security, migration, and the drug trade. Furthermore, it compromises the well-being of all Americans by significantly costing taxpayers, exacerbating environmental concerns, and above all, setting a dangerous precedent for the broad violations of private property rights. The majority of Americans oppose continued border wall construction, as does every congressperson representing a border district, including Rep. Will Hurd (R-TX), who raised concerns about more than 1,000 Texas farmers losing their land if a wall was built. Rather than wasting billions of taxpayer dollars on an ineffective wall, the Trump administration should pursue more fact-based, bipartisan solutions to border security.
Grace Hulseman is an intern with the Immigration team at the Center for American Progress.