Strange bedfellows in border wall suit

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

In his play The Tempest, William Shakespeare said it best: “Misery acquaints a man with strange bedfellows.”

That is an apt description of the various plaintiffs who have filed suit against Trump’s emergency declaration regarding the border wall. California and 15 other states (Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia), the ACLU (American Civil Liberties Union), Public Citizens (a liberal watch dog group) and Texas landowners (typically conservative farmers and ranchers that are supportive of the current administration).

The first lawsuit challenging the emergency declaration was filed on Feb. 15, 2019 by four plaintiffs — three landowners from Starr County, Texas and the Frontera Audubon Society. These plaintiffs object to the process that the President used to gain the funding after Congress largely denied it to him. They claim that Trump cannot waive eminent domain — which requires the government to demonstrate a public use for the land and provide landowners with compensation — by declaring a national emergency. As farmers and ranchers know all too well, eminent domain is the right of the government to take private property for public use, with payment of compensation as provided by the “Takings Clause” of the Fifth Amendment to the U.S. Constitution for the federal government and the Fourteenth Amendment to the U.S. Constitution for state and local governments.

Specifically, the first plaintiffs allege that the declaration by the President of an emergency is legally untenable and an impermissible basis for seeking to obligate funds that Congress refused to appropriate for a border wall. All four plaintiffs claim the wall would deny them access to their land.

The plaintiffs contend that there was no real emergency as required by the National Emergencies Act. More importantly, they state that even if there is an emergency, it is not one that “requires the use of armed forces” which is the critical condition in the budget statute that the President unlocked by issuing his emergency declaration. So if there’s no military necessity, then there’s no emergency authority to redirect military construction dollars toward a border wall.

Even if there is a military necessity — those dollars cannot be spent on just anything. The statute defines military construction precisely and narrowly. You can pay to build things on military property, but not on other government or private property. And you can pay to buy land, but only in order to make that land military property not other government property.

There is a legal maxim — hard cases make bad law. We are likely to see intense litigation over a subtle but critical point. Can judges second-guess the president’s determination that there is an “emergency” under the National Emergencies Act? Can they at least second-guess the determination that the scenario “requires the use of the armed forces” as stipulated by the budget statute? It is a risky outcome either way, but landowners may want to watch for any ruling that chips away at eminent domain protections.

While the plaintiffs are focusing on the public use requirement of eminent domain, a whole other fight can break out about determination of appropriate compensation.

Why does any of this even matter to a farmer in Ohio? Regardless of your opinion of the current administration, any action that makes it easier for a governmental entity to acquire private property is not a good thing. Eminent domain, as established in Constitutional amendments and subsequent case law, spells out specific criteria enabling a government to take private property, including farmland. Why would we enable any official to ignore these protections by declaring an emergency? That is a slippery slope agriculture does not need to contend with.

Oprah Winfrey once reflected that her talk show taught her “we are more alike than we are different.” The various plaintiffs in the numerous cases filed against the border wall support that observation.



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