Should the Federal Gov’t be Prohibited From Using Emergency Powers to Seize Land for the Border Wall? (S. 263)

What is S. 263?

(Updated September 6, 2020)

This bill — the Full Fair and Complete Exchange (FACE) Act — would prohibit the federal government from taking possession of land for border infrastructure until all persons or entities entitled to compensation are paid in full. This bill would ensure that the federal government provides compensation for land acquired for border infrastructure on a timely basis. It’d also require consultation and approval from relevant stakeholders, including tribes, for any acquired state land.

Argument in favor

The Trump administration’s threat to use emergency powers to seize border residents’ land for President Trump’s promised wall would constitute a violation of property rights. This bill creates protections for border residents against illegal, uncompensated seizure of their land and ensure that wall construction takes stakeholders into account.

Argument opposed

DHS and the Trump administration are committed to building the border wall, and they’re rightfully entitled to use all legal means at their disposal — including eminent domain seizures — to get the land they need to complete the wall. This bill would unjustifiably limit the federal government’s authority.

Impact

Border states; southern border; residents of southern border states; eminent domain; border wall; and DHS.

Cost of S. 263

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Martin Heinrich (D-NM), along with a coalition of border state Senators, introduced this bill along with two others (S. 264 and S. 254) to protect residents’ property rights and safeguard important habitat for wildlife, tribal interests, and religious freedoms in the southern border region. This specific bill was introduced to protect property owners along the southern border from President Trump’s threat of using a state of emergency declaration to use executive authority to build a southern border wall:

“Close to 70 percent of land along our southern border belongs to entities other than the federal government. Before any border wall proposal moves forward, we need to mandate consultation with stakeholders, increase transparency, and ensure that landowners are properly compensated before the government takes possession of their property to build new border infrastructure.”

Original cosponsor Sen. Kamala Harris (D-CA), one of the Democrats seeking the Democratic party’s presidential nomination for the 2020 election, adds:

“The president’s vanity project of a wall is a waste of taxpayer money and fails to combat trafficking by transnational gangs. As a border state Senator, I’m concerned that there are insufficient protections for border community residents against this administration’s potential attempts to seize their homes and lands. This bill is an important step forward to protect the rights of residents of our border communities and would provide a necessary check on the executive.”

Sen. Mark Udall (D-NM), also an original cosponsor of this bill as well as the other two bills introduced alongside with it, adds:

“We need to protect New Mexico's landowners, landscape, and way of life, and stand up for our state's proud border communities against out-of-touch attacks from this administration. The Trump administration’s thoughtless and reckless land-grab means homes could be confiscated, farms and livelihoods ruined, neighbors cut off from one another, Tribal sovereignty upended, and endangered species and habitat lost forever if the administration has its way. As a border state senator, I will continue to fight against the president’s wall in Congress. The shutdown showed that this administration will stop at nothing in its obsession with a border wall, and these bills will take much needed action to restore basic due process to eminent domain, protect the most sensitive wildlife areas from border barrier construction, and subject Trump’s wall to the same laws that govern other federal projects. We need to invest in smart border security that actually meets our needs on-the-ground, not a political symbol that violates our values and could irreparably damage our state.”

In a December 12, 2018 press release, the Dept. of Homeland Security (DHS) expressed its commitment to building a border wall as quickly as possible:

“DHS is committed to building a wall at our southern border and building a wall quickly. Under this President, we are building a new wall for the first time in a decade that is 30-feet high to prevent illegal entry and drug smuggling. Once funding was provided, DHS began construction of a border wall quickly, in some locations in as little as nine months from funding to building – a process that commonly takes two years or more in other parts of Government. By the end of FY 2019, DHS expects to have construction completed or underway for more than 120 miles in the areas it’s most needed by the U.S. Border Patrol. The pace of construction has picked up as initial limiting factors like land acquisition and funding have been addressed… Walls Work. When it comes to stopping drugs and illegal aliens from crossing our borders, border walls have proven to be extremely effective. Border security relies on a combination of border infrastructure, technology, personnel and partnerships with law enforcement at the state, local, tribal, and federal level. For example, when we installed a border wall in the Yuma Sector, we have seen border apprehensions decrease by 90 percent. In San Diego, we saw on Sunday that dilapidated, decades-old barriers are not sufficient for today’s threat and need to be removed so new – up to 30 foot wall sections can be completed.”

This bill has three Democratic cosponsors, as well as the support of Defenders of Wildlife and the Southwest Environmental Center.

The other two bills in Sen. Heinrich’s bill package would seek to further limit the federal government’s authority to build its southern border wall without proper assessment of such construction’s impacts:

• The Repealing the Vast Legal Waiver Authority for Construction of a Wall or Barriers Along the Southern Border bill would remove unprecedented authority to waive any and all federal laws for construction of border barriers and ensure that impacts to the environment, wildlife, religious sites, tribal interests, and cultural artifacts are analyzed and minimized.  
  
• The Limitation on Border Infrastructure in Wildlife Areas bill would prohibit the construction of certain elements of the physical barrier along the southern border in national wildlife refuges, wilderness areas, and related areas.
  

Of Note: Recent reports show the Trump administration is staffing up for an increase in eminent domain property seizures. In mid-January 2019, Politico reported that the Justice Dept. (DOJ) had posted job descriptions for a pair of attorneys to tackle border wall litigation in South Texas, which the outlet called “a sign of coming property seizures and other legal controversies that President Donald Trump anticipates if he plows ahead with his signature project.” Chris Rickerd, the American Civil Liberties Union’s senior policy counsel on border and immigration issues, predicted that these new DOJ hires will likely deal with eminent domain property seizures and disputes with landowners over their properties’ values. He said:

“I think there’s a vision that people are seeking injunctions against bulldozers, but that’s not really the legal landscape here. The core of it is taking land from private property owners and litigating the compensation. [People] assume that it’s a big process for the federal government to come and take someone’s land. In fact, legally, the government has a lot of power in this area. And the recourse is very limited.”

The Dept. of Homeland Security (DHS) has been using waiver authority to disregard over 50 environmental, cultural, and public health laws such as the Endangered Species Act, National Environmental Policy Act, and Native American Graves Protection and Repatriation Act in order to build border barriers. This has allowed DHS to construct twenty miles of border wall in Santa Teresa, NM in 2018 without public consultation or an appropriate assessment of the wall’s impact on wildlife and border communities.

Under Section 102 of the 2005 REAL ID Act, the DHS Secretary received “unprecedented power to waive any federal, state, or local law to construct roads and barriers along the border.” Since the REAL ID Act’s passage, both the Trump and George W. Bush administrations have used it to exempt DHS from environmental laws in order to construct roads and barriers along the U.S.-Mexico border.

Media:

• Sponsoring Sen. Martin Heinrich (D-NM) Press Release
  
• Defenders of Wildlife on Medium (In Favor)
  
• DHS Press Release
  
• Wild Mesquite
  
• Politico (Context)