A Border Patrol agent looks on near a border wall that separates the cities of Tijuana, Mexico, and San Diego.
A Border Patrol agent looks on near a border wall that separates the cities of Tijuana, Mexico, and San Diego, California. Gregory Bull/AP

Members of Congress hope to pass laws to help border-adjacent property owners who may be displaced through eminent domain if Trump’s border wall plans proceed.

On Friday, a day after Congress passed its spending package, the President declared a national emergency in order to obtain the funds from elsewhere to build the wall—funds that the spending legislation he agreed to sign did not provide.

This move is going to be challenged in Congress and in the courts, and may end up being temporarily blocked. But if the administration is able to forge ahead with a wall that spans the entire 2,000 miles of the U.S.-Mexico border, many homeowners may find themselves in the way. To proceed, the administration will have to use eminent domain, an unpopular power of government that allows it to take ownership of private property for public use. (Donald Trump has expressed a strange affinity for this authority in the past and even taken advantage of in his own real estate dealings.)

To strengthen protections for border residents, Congress members from both parties have introduced a set of bills that address the quick and dirty way the federal government goes about acquiring land through this process.

“Both parties should agree that private property should not be taken until a court establishes, and the property owner receives, just compensation,” David Bier, an immigration policy analyst at the libertarian Cato Institute who has argued against the eminent domain process, said via email. “The current eminent domain procedure is inadequate and thwarts the spirit of the Constitution.”

House Democrats released a package Thursday containing three bills, the first of which forbids the Department of Homeland Security (DHS) from waiving environmental and historical preservation laws; the second directs the DHS to set up a $20 million legal fund for low-income landowners to fight for due process and fair compensation, and the third requires that all landowners be fully compensated before their land is seized.

“Our nation has a long and dark history of land seizures targeting poor and marginalized communities who lack the resources to fight for fair compensation under the law,” said Representative Val Demings, the Florida Democrat who introduced the second bill, in a statement. She added that her own parents had been “heartbroken” when they had their property seized after 40 years of ownership.

Eminent domain has traditionally been the bete noire of small-government Republicans, so it’s not just the Democrats who are pushing for such laws in anticipation of border wall construction. In January, Representative Justin Amash, a Republican from Michigan, also introduced a bill that would ensure that property values be fairly analyzed before the government takes procession of it: “It is unjust for the government to seize someone’s property with a lowball offer and then burden them to fight for what they’re owned,” he wrote on Twitter.

Already, many residents along the border have received notices from the government asking for permission to enter the premises for inspection, which is known to be the first step in the eminent domain process. Efrén Olivares, of the Texas Civil Rights Project, who represents Rio Grande Valley residents in eminent domain lawsuits, estimates that approximately 100 people have been received such notices. Per his count, 12 have already been sued by the government for not consenting. (In 2018, McAllen, Texas, Mayor Jim Darling reported 167 notices in Hidalgo County itself, according to The Texas Tribune; that’s roughly half of the total residents he guessed would be potentially displaced by the wall.)

The current eminent domain process is, in fact, incredibly complex and tends to put residents—especially low-income ones in poor border-adjacent counties who may not have access to lawyers or speak English—at a huge disadvantage, Olivares said. “The government can take the land without paying a cent for it,” he said. “It can take physical possession, and the landowner won’t see a dime for a long time.”

This is not the first time border residents have dealt with this, either. A third of the U.S.-Mexico border already has fencing that was set up during the Bush administration because of the Secure Fence act of 2006. A 2017 ProPublica and Texas Tribune investigation found that the federal government had conducted the eminent domain acquisitions during that last wall-building effort in a hasty and haphazard way—circumventing laws that ensure fair and swift compensation for homeowners and in the process, shortchanging many of them. Residents fought court battles that took years to be resolved; many are still going on.

Federal and tribal land only make up a third of the Southern border—so constructing a barrier along the entire length, as the current administration intends, will put a lot more private property at risk. But border residents—some of whom have passed down their land for generations—are not willing to step aside without a fight. “I’m against the wall because I’m going to get evicted by it,” Nadya Alvarez, a 47-year-old high school teacher who owns an acre of land at the border in Rio Grande City, Texas, told The Washington Post. If some of these new protections pass in Congress, the process may become a lot fairer, Olivares said.

The research on whether walls effectively curb illegal migration is mixed—and in fact, some studies show that a border fence would disproportionately affect marginalized groups along the border. Christina Patiño Houle is a steering committee member of the Southern Border Committees Coalition, who works for the Rio Grande Valley Equal Voice Network and organizes local border communities. Some of the areas in the way of the wall are incredibly poor, unincorporated colonias—lacking roads, light, drainage infrastructure, and services like garbage collection, Patiño Houle said. They are particularly vulnerable to flooding every time hurricane season comes around. She finds it unfortunate that instead of fixing those problems, the Trump administration is adamant about constructing a wall that may well exacerbate them. The wall, if it’s built, would be a physical symbol of the faulty assumptions the government and much of the media has imposed on the area.

“Not only is the narrative being taken over by people who don’t live here,” Patiño Houle said, “but the infrastructure is being taken over by people who don’t live here.”

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