By Gerald S. Dickinson, The Washington Post

With the federal government now reopened, President Trump is threatening to invoke the National Emergencies Act as a lever to find money for the construction of a wall on the U.S.-Mexico border — a policy that Congress very clearly does not support. Soon after announcing Friday that he would sign legislation to fund the government for three weeks, Trump declared, “If I don’t get a fair deal from Congress … I will use the powers afforded to me … to address this emergency.” He says he has the “absolute right” to declare a national emergency and order the military to build the wall to stop the threat of “illegal immigration” in the country. But the real threat is the specter of a sitting president wielding emergency powers to implement a public policy he can’t persuade Congress, let alone the public, to support. The law Trump is threatening to use was never meant to allow something like this.

Throughout the mid-1970s, Congress debated whether to terminate certain authorities given to the president to declare a national emergency. In particular, U.S. involvement in Vietnam and Cambodia piqued the interest of several members of Congress, who demanded a special study of the consequences of terminating a 1950 national emergency proclamation regarding the Vietnam War. At the time, the nation had technically been under a state of emergency for more than 40 years. Those emergency powers were extraordinary: The president could, among other things, restrict travel, seize property, organize and control the means of production and assign military forces abroad.

“It’s hard to take seriously the idea that a years-long construction project is an emergency action, if only because it wouldn’t have any effect until well into the future.”

— Jerry Dickinson, constitutional law and property professor at the University of Pittsburgh School of Law


By Gerald S. Dickinson, The Washington Post

President Trump still wants to push ahead with a wall on the U.S.-Mexico border. He said Tuesday that a deal with Democrats in Congress about funding the government is unlikely in part because they won’t go along with his immigration policies. And recent events have stoked concerns of imminent land standoffs: The White House is seeking to hire additional attorneys to seize land. Cards Against Humanity purchased land in defiance. But less publicized is recent efforts by 10 Democratic members of Congress representing districts near the U.S.-Mexico border, including Texas, New Mexico, California and Arizona, to introduce a bill that would prohibit Elaine Duke, acting secretary of homeland security, and Attorney General Jeff Sessions from “using eminent domain to acquire land for the purpose of constructing a wall.”

The ultimate fate of the wall — one of the central promises of  Trump’s 2016 campaign — may wind up being determined by short-term political considerations (do Republicans rally behind, or flee, the White House as next year’s elections approach?), budget concerns (how many billions of dollars will it cost?) or simple logistics (how should it be built?).

But there’s another reason members of Congress may want to consider supporting the bill’s sponsors in prohibiting federal eminent domain to acquire land for its border wall project: It may be what the founding generation intended.

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By Gerald S. Dickinson, The Washington Post

In 2008, the George W. Bush administration, which had started building about 670 miles of border fencing on mostly federally owned land in Arizona, California and New Mexico under the Secure Fence Act of 2006, tried to seize an acre or so in Cameron County, Tex., that belonged to Eloisa Tamez. Things did not go quickly.

Tamez fought the government in federal court. During seven years of litigation and negotiation, she became famous for resisting the border fence. The government eventually paid her $56,000 for a quarter-acre the fence sits on and gave her a code to open a gate so she can access her land to its south.

[T]he concept of the wall and the immigration policy Trump wants to pursue...will inflame the passions of Americans who see our country as a symbol of democracy and inclusion, not as an isolationist nation.

magine this playing out over and over again along the 1,300 miles of borderlands that President Trump wants to wall up. “We will soon begin the construction of a great wall along our southern border,” Trump promised Tuesday night in an address to Congress. “It will be started ahead of schedule, and, when finished, it will be a very effective weapon against drugs and crime.”

But actually building the wall, as the Tamez saga shows, won’t be as easy as dashing off an executive order requiring it. The main problem won’t even be the $25 billion that some estimates say the barrier could cost. Trump’s real difficulty will be in getting permission from property owners to build the wall — no matter how much money it takes — and the land wars that will bog down his plans.