The term "eminent domain" is often raised in discussions about the logistics of President Trump's long-promised border wall with Mexico. Specifically, that the government would need to invoke eminent domain to get the thing completely built. But what is eminent domain, and now does it apply to the border wall?
What is eminent domain?
"Eminent domain" is the government practice of taking ownership of private property in order to build a project for public use. The owner of the property must be compensated for it. For example, a state or federal government might claim eminent domain to farmland that stands on the route of a proposed highway. Or ... a great big wall.
The term comes from a 17th-century Dutch legal text, which used the term "dominium eminens" (Latin for "extreme lordship") to describe the practice. "The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility," wrote legal theorist Hugo Grotius.
In the modern era, the government surveys the land it wants and offers a market-rate price. Landowners do have the right to sue the government for more compensation than it offers for their property.
How is eminent domain legal?
The Bill of Rights protects Americans and their property from illegal search and seizure. So how is eminent domain not seizure? Well, the Bill of Rights says it isn't. The Fifth Amendment the "public use clause," which specifies that the government has the right to take private property, as long as "just compensation" is given. The Supreme Court has repeatedly upheld the concept as an inherent right of a federal government but has, just as often, specified that each state should decide how to define "public use."
How does eminent domain apply to Trump's border wall?
As you might have guessed or heard during contentious debates about the feasibility of President Trump's border wall, there is not a continuous barrier between the United States and Mexico at this time. Constructing one would necessitate declaring eminent domain over some private properties: About two-thirds of the land on the border is owned by private landholders or states.
Newsweek reported in November that President Trump had hired 12 lawyers for $2 million to begin litigating those eminent domain cases. At least 90 cases were started in 2007, when the government moved to claim land in Texas, but have laid dormant for a decade.
The government estimates it will cost $21 million just to resolve those suits. The total cost of settling all the suits that would result from a contiguous border? No one knows.