He should ditch the “military version of eminent domain” and order the Pentagon to start building.
Donald Trump spent much of his 2016 campaign railing against President Obama’s misuse of executive power, especially Obama’s decision to extend legal protection to underage children who were brought to the U.S. by their foreign parents.
But now President Trump, frustrated by Congress’s failure to deliver $5 billion in funding for the border wall, is proposing to bend the Constitution to get what he wants. Trump told reporters that he may be willing to declare a state of national emergency to build the wall “very quickly” without congressional backing, and that he may even use “the military version of eminent domain” to seize the property such a structure might need. “I can do it if I want,” he declared.
Trump can certainly declare a national emergency, but the courts would probably look askance on any rash actions. In 1952, President Harry Truman cited a state of emergency when he ordered the government to seize the steel mills during a strike. He claimed it was the only way to guarantee that the mills would continue to produce weapons for the Korean War. The Supreme Court — packed with justices appointed by New Deal presidents — nonetheless concluded by a 6 to 3 vote that he didn’t have the authority to nationalize private businesses. Few legal scholars believe that the current Supreme Court — the conservative portion of which is steeped in Federalist Society principles of limited government — would give Trump the benefit of the doubt in a non-war situation.
But many legal scholars say there is a way Trump could act legally. Current law allows the Defense Department to use “un-obligated” money to fund construction projects during war or emergencies. “The Department of Defense has funds in its account that are not specifically designated for anything,” Harvard Law School professor Mark Tushnet told NBC News. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”
But Trump would be on shakier ground — even with his conservative base — if he pursued his concept of a “military version of eminent domain.” Legal analysts don’t know if such a concept is firmly rooted in the law even during peacetime. Seizing land along the border would also create many opportunities for abuse. The federal government owns less than one-third of the land adjoining Mexico. The rest belongs to local governments, Native American tribes, and private-property owners.
Trump’s cavalier attitudes toward private property are nothing new. As a crony capitalist, Trump backed the Supreme Court’s controversial decision in 2005 in Kelo v. New London, which allowed public authorities to seize private land and turn it over to private interests for “economic development.” In a 2005 interview with Neil Cavuto of Fox News, he praised the eminent-domain ruling:
I happen to agree with it 100 percent, not that I would want to use it. But the fact is, if you have a person living in an area that’s not even necessarily a good area, and . . . government wants to build a tremendous economic development, where a lot of people are going to be put to work and . . . create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.
Indeed, Trump was notorious for his misuse of eminent domain. In the 1990s, he fixed his sights on the home of Vera Coking, an elderly homeowner whose tiny house in Atlantic City stood in the way of what Trump called a “fantastic” limousine parking lot next to a Trump casino.
The Institute for Justice, a public-interest legal firm that eventually forced Trump to back down, described Trump’s approach :
Unlike most developers, Donald Trump doesn’t have to negotiate with a private owner when he wants to buy a piece of property, because a governmental agency — the Casino Reinvestment Development Authority or CRDA — will get it for him at a fraction of the market value, even if the current owner refuses to sell.
As a businessman, Trump reveled in having such special powers. When John Stossel, who interviewed Trump about the Coking case for ABC News, accused Trump of bullying Coking, Trump retorted, off-camera, “Nobody talks to me that way!”
But “someone should,” Stossel answered.
Someone should also warn Donald Trump that as much as he’s convinced that the American people want a border wall, the poll numbers tell a different story. Though a Quinnipiac poll last month showed that support for building a wall on our Mexican border has risen ten points in the past year, from 33 to 43 percent, it also found that 54 percent of those surveyed (including 53 percent of independents) did not think that a wall was “necessary to improve U.S. border security.” A Reuters/Ipsos poll found that just 35 percent of those surveyed supported including money for the wall in a federal spending bill.
If President Trump begins to imitate Barack Obama in issuing dubious executive orders and trampling on private-property rights, he could find himself in trouble even with portions of his base.
Changing tactics would be the best way for Trump to end the stalemate that has shut down one-fourth of the government for more than two weeks. He should brand Congress as irresponsible on the issue of border security and say he’s been forced to direct the Defense Department to use some of its unallocated funds for border construction projects.
Doing it that way, the president would probably score points on the political argument and ensure that, come the 2020 election, he will have actually built something along the border rather than just talking about it.