Will Trump’s National Emergency Declaration Bring the Border Wall Down Before its Built?

Lost in the political debate surrounding the construction of a wall along our southern border are the legal and practical implications of President Trump’s emergency declaration: It will require taking thousands of acres of property from private landowners.

This morning, President Trump signed a national emergency declaration to appropriate funds for the construction of a border wall between the U.S. and Mexico. Citing a national security and humanitarian crisis at the southern border, the declaration seeks to secure about $6.5 billion more in funding than Congress approved Thursday.

While the declaration appears to solve the funding issue for the President’s wall, Texas eminent domain attorney Charles McFarland argues the President’s declaration creates more problems for the project than it solves.

“In order to use eminent domain to quickly take private land, Congress has to appropriate funds specifically for the acquisition,” McFarland, said in an interview with Courthouse News. The president seems be trying to circumvent this requirement, “which means he will not have checked the second box in the Declaration of Taking Act,” McFarland said.

“Texas landowners would have few legal options if Congress funded the wall. But if Trump goes around them, lawyers will have a field day,” explains McFarland in his commentary “Declaring a national emergency to fund Trump's border wall may be what finally kills the project.“

“Were Congress to pass legislation to implement and fund the border wall, those landowners would be left with few options to challenge the project. But a rogue decision to secure funding through executive fiat (like a declaration of national emergency) could ironically give landowners the ability to challenge the project on grounds that were previously unavailable.”

“Trump’s actions will be challenged in court all over the country. We will argue that he is not protected by the National Emergencies Act or the Declaration of Taking Act, and there is no other statute that allows him to take land through a national emergency,” McFarland said.

Photo Credit: Herika Martinez / AFP - Getty Images

Border Patrol, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents take part in a safety drill in the Anapra area in Sunland Park, New Mexico across from Ciudad Juarez, Chihuahua state, Mexico, on January 31, 2019.

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