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- Title
THE FEDERAL GOVERNMENT'S POWER OF EMINENT DOMAIN OVER STATE LANDS REGARDING THE U.S.-MEXICO BORDER WALL.
- Authors
Harrall, Simon J.
- Abstract
Construction of the U.S-Mexico border wall remains in the media spotlight with continued debate over the balance between the wall's necessity and its potentially adverse impacts. Notwithstanding this debate, the acts providing for construction of the wall afford the federal government broad powers to disregard other federal legislation that might otherwise hinder the construction from proceeding. These acts also provide for the acquisition of land for the border wall through condemnation. Even though the federal government has survived several challenges to its exercise of eminent domain power to acquire land for the border wall, Texas lawmakers have introduced a bill in the Texas Legislature expressing specific opposition to the use of eminent domain for border wall construction. This Comment examines the potential effect of this bill by analyzing the power of the federal government to acquire state-owned lands by condemnation and uses the hypothetical construction of the U.S.-Mexico border wall in the Big Bend Ranch State Park as a modernday example. The federal-state balance of power is investigated in light of state statutes providing automatic consent to such federal actions and through a study of potential limits to the federal government's powers under both the Fifth Amendment Takings Clause and the Enclave Clause of the Constitution. This Comment finds that although the power of the federal government to procure state-owned lands might be limited only by a judicial finding that the selection of land is arbitrary and capricious, the required burden of proof on the part of the challenger presents a high threshold. Additionally, though the Takings Clause of the Fifth Amendment of the Constitution applies to the federal government when it acquires state-owned land for a public use by condemnation, the federal government is bound only to provide appropriate compensation to the state. Thus, even if passed, the opposition bill in the Texas legislature would have no effect in curtailing the powers of the federal government. Furthermore, should the federal government somehow act beyond its constitutionally-enumerated powers in condemning specific stateowned lands with consent of the state, then it would be difficult to identify a suitable plaintiff who would have the necessary standing to oppose or enjoin such actions.
- Subjects
MEXICAN-American Border Region; TAKINGS clause (Constitutional law); ILLEGAL Immigration Reform &; Immigrant Responsibility Act of 1996 (U.S.); UNITED States. Constitution; COMMERCIAL law
- Publication
Houston Law Review, 2019, Vol 56, Issue 3, p635
- ISSN
0018-6694
- Publication type
Article