February 15, 2019
THAT'S JUST NOT HOW IT WORKS:
One Obstacle to Trump's Border Wall Might Be His First Supreme Court Appointee (STEPHANIE MENCIMERFEBRUARY 15, 2019, Mother Jones)
[T]rump's border wall still faces a host of thorny legal obstacles. Foremost among those might be one of his own making: his first Supreme Court appointee, Justice Neil Gorsuch.Building an actual wall along the southern border will require the federal government to seize thousands of acres of private land, mostly in Texas. The government's seizure of private land through eminent domain is hugely controversial, but the Supreme Court has largely given the federal government free rein to use it widely so long as private landowners are compensated for their losses. The most recent decision reaffirming that power is Kelo v. City of New London, decided in 2005, in which the court upheld the right of the government to seize private land and give it to a private party for redevelopment.According to emails released during his confirmation hearing, Gorsuch thinks Kelo was wrongly decided, and court watchers have taken that as a sign that he might be highly skeptical of claims by the Trump administration that its declaration of an emergency would authorize the mass seizure of private land. "It's clear that Gorsuch values constitutional property rights far more than Trump does," says Ilya Somin, a libertarian law professor at George Mason University and the author of a book on the Kelo decision.
It's not a question of how you feel about property rights but of how you feel about the Constitution. There is no coherent argument that government takings to build a defensive wall would be unconstitutional. The Takings Clause, after all, states that: "private property [shall not] be taken for public use, without just compensation." Whatever else it may be, the wall is a public use.
Kelo offered a more interesting, because debatable, question: how broadly is public use meant to be read. Justices Thomas and Gorsuch believe that the property taken then has to be used by a public entity:
Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134--135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9--10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."
This is a far narrower dispute than the Court will face when the Wall case is argued. If they want to rule against the takings then they will have to either repudiate the Constitution or rely on the possibility that the compensation offered to the current landowners is unjust.
Of course, they are more likely to avoid ever getting to the defense of private property by simply finding that the presidential emergency order fails a simple factual test.
Posted by Orrin Judd at February 15, 2019 5:35 PM