Brooklyn Law Review
Donald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency—the Casino Reinvestment Development Authority (CRDA)—to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land.
The property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional green space, the New Jersey Superior Court found there were not “sufficient assurances that the properties to be condemned will be used for the public purposes cited to justify their acquisition.” In reaching its result, the court noted that the legality of a government taking “may . . . turn upon an assessment of the consequences and effects of the proposed project.” The court refused to give significant deference to the government agency’s determination that the public purpose would be satisfied. Instead, it evaluated the government’s claims on its own and found them lacking.
This heightened scrutiny is generally absent in federal court decisions interpreting the scope of public use for eminent domain power. This lack of federal fetter on eminent domain is troubling because of President Trump’s promises to build a border wall between the United States and Mexico. Trump instigated chants of “build a wall!” at his campaign rallies, issued an executive order concerning the wall within his first days in office, and shut down the government over border wall funding. Construction of Trump’s proposed border wall commenced in late September 2017. In November 2017, Trump requested additional resources to hire government attorneys to handle eminent domain cases in the coming year. After failing to secure federal funding for his border wall for over a year, Trump partially shut down the government in December 2018. Ending on January 25, 2019, this shutdown became the longest in U.S. history.
Although about 650 miles of border fencing were already constructed in 1990, the proposed wall would be both much longer and much more massive. According to the executive order, “wall” is not just fencing, but “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The wall would also span the entire “‘Southern border’ . . . including all points of entry.” The southern border encompasses roughly two thousand miles. It stretches across the states of California, Arizona, New Mexico, and Texas. Two-thirds of the land along this border is private, state-owned, or tribal land, while only about one-third is owned by the federal government.