Eminent Domain. Art work by Richard Weinstein (used with permission).
President Trump's recent threat to use "the military version of eminent domain" to seize property for his border wall highlights the ways in which building the wall would harm the property rights of Americans. Less widely recognized is the fact that the wall policy is just part of a larger pattern of administration policy initiatives and legal positions that threaten property rights on multiple fronts.
Though federal law allows the federal government to use eminent domain for purposes of building military facilities, including "fortifications," there is no special "military version" of eminent domain, as such. But whether Trump tries to use this law or some other one to seize property for the wall, the fact remains that less than one third of the land he would need is currently owned by the federal government. The rest would have to be seized from private owners, Native American tribes, and state governments. That would require the forcible displacement of hundreds or even thousands of homes, businesses, and other private facilities. It would be the largest such use of eminent domain in many years. Moreover, the record of previous condemnations for border barriers shows that the Department of Homeland Security has a notorious history of violating procedural rights and shortchanging property owners on the compensation they are due under the Constitution. The same sorts of abuses are likely to recur on a larger scale if Trump gets the money to build his much more extensive wall.
During the 2016 presidential campaign, Donald Trump claimed that victims of takings have nothing to complain about because "when eminent domain is used on somebody's property, that person gets a fortune." The history of border takings—and many other condemnations—proves otherwise.
The wall is far from the only administration policy that threatens property rights, however. There are several other almost equally troubling examples.
In 2017, Attorney General Jeff Sessions reinstituted asset forfeiture policies under which the federal government colludes with state and local law enforcement to seize large amounts of property with little or nor due process, and often from people who have never been convicted of any crime or even charged with one. While Sessions is gone, the asset forfeiture policy remains, and Trump himself is a strong supporter of broad asset forfeiture authority, even threatening to "destroy" the political career of a GOP state legislator who sought to curb it.
In the aftermath of Hurricane Harvey, the US Army Corps of Engineers flooded thousands of homes and businesses in Houston, arguing that this was necessary to prevent even worse flooding elsewhere. When affected property owners sued for compensation under the Takings Clause of the Fifth Amendment, the federal government argued that no compensation is due in cases where the government floods the property "only" once—even if the flooding was done deliberately and inflicted enormous damage. If accepted by the courts, the "one free flood" rule would give the government a near-blank check to flood property (and perhaps damage or destroy it in other ways), so long as it was "just" a one-time occurrence. I don't claim that the administration should have simply conceded liability in the Hurricane Harvey cases. In some cases, it is not clear whether the plaintiffs' property was damaged by the Corps' actions, or whether it would have suffered comparable damage regardless, from natural causes. But the "one free flood" argument is an extremely dangerous and reprehensible position that goes far beyond contesting liability in individual cases where the facts are arguable.
Since Trump took office, the Supreme Court has heard two important takings cases, Murr v. Wisconsin and Knick v. Township of Scott. The administration supported the wrong position in both cases. In Murr, the Justice Department filed an amicus brief supporting a rule that will often allow government to deny compensation for takings merely because the owner of the property in question also owns another adjacent lot. While the brief was initially drafted late in the Obama administration, the Trump administration decided to proceed with it and defend it in oral argument before the Court, despite requests by conservative property rights advocates urging them to desist.
In Knick, the Justice Department's amicus brief offers a dubious and hypercomplex "Klingon forehead" argument that would preserve large parts of the 1985 Williamson County decision, a deeply problematic ruling that creates a constitutional Catch 22 for property owners seeking to file cases challenging state and local government takings in federal court [but see second update below].
The administration's decision to involve itself in these two cases is all the more telling because both involve state and local governments. The federal government could easily have stayed out of them. An administration committed to protecting property rights could, of course, have filed briefs supporting the property owners.
Arguments advocated in administration briefs in important federal court cases, especially those that reach the Supreme Court are more than just insignificant rhetorical fluff. Historically, positions taken by the Justice Department Solicitor General have often had disproportionate influence in judicial decision-making. That's why the SG often called the "tenth justice" of the Supreme Court.
There is one notable exception to the administration's otherwise troubling record on property rights: the appointment of Neil Gorsuch to the Supreme Court. Gorsuch, it turns out, is a strong critic of Kelo v. City of New London, the dubious 2005 decision in which the Supreme Court ruled that the government can take private property and transfer it to another private party in order to promote "economic development." The appointment is especially notable, given that Trump himself is a longstanding enthusiastic defender of Kelo. I suspect that Gorsuch got through in part because Trump simply did not know about his views on Kelo at the time he was appointed, and in part because the president has largely outsourced judicial selection to more conventional conservatives, most of whom do not share the president's views on this issue.
It is also likely the case that property rights were not a central focus in the administration's calculations on judicial appointments (including lower court appointees, some of whom also have good records on these issues). Brett Kavanaugh, the administration's other Supreme Court appointee, has virtually no known record on constitutional property rights issues, so it is not yet clear where he stands on them. Where the administration has made decisions on issues where property rights are a central focus of dispute, property owners have usually gotten the short of end of the stick, as the examples discussed above illustrate.
Some of the Trump administration's policies on these issues are similar to those of the Obama administration, which also had an awful record on property rights, including adopting positions so extreme that they led to multiple lopsided unanimous or near-unanimous defeats in Supreme Court takings cases. On asset forfeiture, however, Trump actually reversed an Obama policy that had strengthened protection for property owners. In any event, here, as elsewhere, Obama's poor record in this field is no excuse for Trump. The Republicans, after all, are supposed to be the party that supports property rights.
The administration's attacks on property rights may in part be a result of Trump's history of benefiting from eminent domain abuse, which is the likely origin of his support for Kelo. But the problem goes beyond his personal proclivities. It is part of a broader pattern under which the Trump-era Republican Party has gradually shifted from conservatism to nationalism, as its dominant ideology. Nationalists, like the European far-right movements whom Trump and his most committed supporters admire, generally favor extensive government intervention and control of the economy so long as the perceived beneficiaries are members of the "right" racial and ethnic groups. Thus, they are happy to downgrade property rights (and economic liberties) that might be obstacles to government control of the economy in the interests of "the nation."
Nationalists also are traditionally hostile to procedural protections for individual rights that might inhibit law enforcement or government acquisition of property supposedly needed for "national" purposes. The administration's policies on asset forfeiture and the wall obviously fit that template. The administration's stances on Knick, Murr, and the Houston flooding cases do not immediately implicate nationalist priorities. But undercutting constitutional protections for property rights in these instances can make it easier to seize or destroy property for nationalist purposes in the future.
The extent to which Trumpian nationalism consolidates and extends its control of the Republican Party remains to be seen. But the longer it lasts and the further it goes, the more the party is likely to be at best indifferent and at worst actively hostile to property rights.
NOTE: I should perhaps mention that the account of the administration's decision to oppose property rights in Murr v. Wisconsin, despite requests to the contrary by conservative property rights advocates, is based on my personal knowledge of the development of the case, in which I authored an amicus brief on behalf of nine state governments that supported the property owners. However, the views expressed in this post are purely my own and don't necessarily reflect those of my clients in that matter.
UPDATE: I have added a brief passage to this post on the importance of positions taken by the administration in federal court cases, especially those that reach the Supreme Court.
UPDATE (Jan. 16): After studying the administration's position in Knick more closely, I think it is more favorable to the property rights side than I suggest above. I may expand on that in a future post, if time permits. I will link to that post here when and if it goes up. In the meantime, I think it is proper to note this revision of my view on the case, here.
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