Trump’s militarized land seizure for border wall is more complicated than ‘I can do it if I want’

President TrumpDonald John TrumpWarren: 'White supremacists pose a threat to the United States like any other terrorist group' National Enquirer paid 0,000 for Bezos texts: report Santorum: Trump should 'send emails to a therapist' instead of tweeting MORE recently announced he could invoke national emergency powers to divert military funds to build his long-promised border wall along the U.S.-Mexico border, since Congress won’t give him $5 billion in funding. He said he would grab the land “under the military version” of eminent domain “fairly quickly” — the Fifth Amendment power to seize private property for a public use upon just compensation.

But Trump’s threat of using the military to acquire land for a massive federal project is nothing new or extraordinary. What is extraordinary, however, is Trump’s assertion that he can unilaterally order the military to build the wall, including seizing land, by declaring a national emergency without statutory authorization, let alone evidence of a legitimate emergency.

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Let’s start with the basic question. Can the military use eminent domain to seize private land along the border for Trump’s wall? Yes, of course. The United States has a long tradition of authorizing the military to seize private land for a federal project.

In 1864, Republicans and Democrats had a heated debate over a bill to fund the construction of a military arsenal in Rock Island, Illinois. The bill, controversially, also proposed to authorize the first instance of the federal power of eminent domain. Finally, after months of floor debates, it was Vice President Andrew Johnson who went to Congress to broker a deal. He wanted Congress to authorize the secretary of war (today the secretary of defense) to seize private land to build the arsenal. It worked. The bill passed and was later signed by President Abraham Lincoln.

Today, Congress has delegated the power to seize private property to many military branches, including the Army Corps of Engineers to construct military bases and the Department of Navy to acquire land for airfields and gunnery ranges. For example, it took 15 years for the Army Corps of Engineers to seize the land for the famous Truman Dam. Likewise, the Department of Navy filed thousands of eminent domain cases to acquire land for the Chocolate Mountain Gunnery Range during World War II.

If Congress passes a budget that includes Trump’s $5 billion in border wall funding, then technically it is possible that the Army Corps of Engineers could begin seizing land and constructing the wall. The Corps regularly works alongside the Department of Homeland Security and U.S. Customs and Border Protection to acquire land along the border for security purposes, most notably the fencing installed during the Bush and Obama administrations.

One problem, though, is the volume of land that needs to be acquired to build Trump’s “Great Wall” is vast. One-third of the land is owned by the federal government, while the rest of the land is owned by states, private property owners or Native American tribes. That will be no easy task, especially in Texas, where the vast majority of the land is privately owned.

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The bigger problem, however, with Trump’s “military version” of eminent domain is the implication that he can divert military funding to order the military, most likely the Army Corps of Engineers, to seize land and construct the wall without statutory authorization. This is where Trump finds himself at a roadblock. 

As Bruce Ackerman, law professor at Yale Law, rightly notes in his recent op-ed in the N.Y. Times, the Supreme Court has invalidated variations of the emergency power in its 1953 Youngstown v. Sawyer ruling, striking down President Truman's seizure of the steel mills during the Korean War as lacking implicit or express constitutional and statutory authority. However, while the Youngstown ruling restricted the "presidential" power to take private property during a national emergency, without statutory authorization, the court’s majority opinion did not explicitly restrain the "government" power to seize private property during a national emergency. The ruling noted that the president does not have the power to order the military to seize private property and that the power is the "job for the Nation's lawmakers, not for its military authorities."

If Trump wants the military to seize land for the construction of his wall, he should follow President Lincoln’s lead from 1864 by signing onto an appropriate congressional authorization that direct funds to and expressly authorizes the secretary of defense to order the Army Corps of Engineers to act.

Otherwise, Trump may be abrogating his constitutional authority by ordering the troops to go it alone in seizing land along the border. 

Gerald S. Dickinson is a constitutional law and property professor at the University of Pittsburgh School of Law