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Army Corps of Engineers sent to Mexico-American border

In an effort to follow through on the promise of a border wall, the Trump administration has sent the Army Corps of Engineers to begin preparations amidst environmental and eminent domain concerns.

Photo: Matthew Busch for The New York Times (Courtesy of Google Images)

As one of the Administration’s loudest policy proclamations, President Trump has promised to protect the American public by building a wall along the Mexican-American border. This plan was set to move forward as a part of numerous other promises made by the president, including that the cost of the project be placed on Mexico. Despite Mexico’s unwillingness to cooperate with Trump’s plan, the administration is slowly moving forward. In fact, the Army Corps of Engineers is beginning to assemble around border areas and clear land for what many anticipate will provide the necessary foundation for the wall.

The U.S. military is familiar with the process of constructing large, concrete walls in order to block out “enemies.” Back in 2008, rockets were raining over the Green Zone in Baghdad, which housed several government officials’ offices and foreign embassies. In just six short weeks, U.S. and Iraqi forces united and constructed a concrete wall using about 3,000 casted slabs, each standing twelve feet high, weighing nine tons, and stretching the length of nearly three miles. Soon enough, the missiles stopped.

Not long before the construction project in Baghdad, the National Guard was mobilized along the California border to build a fence. To justify its use of the military power and funds, the Pentagon declared the project to be part of training for the soldiers and claimed that by not employing the private sector, tax payers would not bear the costs associated with the plan; however, the fence construction was ultimately moved to the private sector, but not for policy purposes. The 2000s have proven to be a sensitive time for the military. Homeland Security made the decision that military personnel were best suited for military duties and left the fence construction to others, despite the increased costs.

Shortly after Trump took office, the discussion of his campaign promise for a border wall resurfaced. The costs and laborers for the project remain unsettled details, since Mexican President Enrique Pena Nieto rejected any financial contributions on behalf of his country. Trump has gone as far as to ask Pena Nieto to stop saying, at least to the press, that Mexico will not pay for the wall. Homeland Security estimated the project to cost $22 billion, but the agency only allocated $20 million for pre-construction efforts and the 2018 administration budget only set aside $1.6 million.

Since the dispute with Mexican leadership, the U.S. Customs and Border Patrol (CBP) has put the wall project out for bidding. While details of the prospective builders and of the wall itself have been left undisclosed, the CBP has released the most basic “rules” for the wall. The wall must be between 18-feet and 30-feet tall, stretch the entire border, look aesthetically pleasing to those on the American side, and be as impenetrable as possible. Homeland Security has been paying close attention, specifically in the San Diego and Rio Grande areas, because of the simple fact that over 800 breaches have been documented in those areas over the course of one year. Homeland Security has taken such issue with the areas’ sensitivity that the first prototypes for the wall will be built in San Diego. One of the biggest questions remains not whether Americans have the capacity to build, but whether they can afford to build.

Congress has passed several laws that permit Homeland Security to avoid conflicts with environmental and land management laws.

Another obstacle for the Trump administration is legal in nature. Unfortunately, finding the money and man-power alone will not settle the debate. Rather, environmental and constitutional questions have already been raised and must be addressed. As of August 2017, Homeland Security has already said it has full intentions of using its authority to exempt the agency from complying with certain environmental regulations and other laws throughout the process of building the border wall.

Congress has passed several laws that permit Homeland Security to avoid conflicts with environmental and land management laws. Most of the fencing already in place was constructed by the department’s invoking of the same authority in the mid-2000s. David Lapan, a department spokesman, said the department’s waiver would be published in the Federal Register soon.

The administration’s attempt to bypass certain environmental protections has procured a more negative reaction from others, such as Brian Segee, a lawyer with the Center for Biological Diversity. Segee sued the administration in April for their failure to study the environmental impact of the wall construction and declared Homeland Security’s compliance waiver to be simply unconstitutional. “This isn’t just a wall they’re in a rush to build,” he said, “It’s roads, lighting, and all of the infrastructure that comes with it. All of this without any environmental review or public input.”

The Army Corps of Engineers has already started drilling and taking soil samples to determine what type of barriers would be most effective. In the midst of drilling and testing, CBP continues to evaluate the dozens of proposals that have been submitted by the prospective builders.

Bipartisan opposition to the controversial wall has been loudly vocalized not only in Washington, but also around the country.

As prototypes reach actualization, Trump has addressed the environmental concerns, even to the point of saying that he plans to use the landscape as a contributing part to the barrier. Essentially, Trump has scaled back his 2,000-mile wall proposal into a more modest construction. “You don’t need 2,000 miles of wall because you have a lot of natural barriers,” Mr. Trump said in a conversation with reporters aboard Air Force One. “You have mountains. You have some rivers that are violent and vicious. You have some areas that are so far away that you don’t really have people crossing. So you don’t need that. But you’ll need anywhere from 700 to 900 miles.”

Bipartisan opposition to the controversial wall has been loudly vocalized around Washington and around the country. In Texas, a notably conservative state that Trump won during the election, much of the land that is projected to host the proposed wall is private land. Again, obtaining the man-power and money to build will not overcome the constitutional obstacle of the Fifth Amendment and the Eminent Domain provision. The Fifth Amendment to the Constitution reads, “nor shall private property be taken for public use, without just compensation.” In order to defeat a Fifth Amendment claim, Trump will have to find even more money and compose a legally sound argument to satisfy the standards of “public use” and “just compensation” required by the law.

Perhaps one of the most illustrative examples of possible eminent domain issues is that of Marianna Trevino Wright, a Texas resident living near the Mexico border and executive of a butterfly reserve. She described to a contractor her efforts in turning her property into an “oasis of butterflies,” as her property is a landmark for Monarch migration patterns that consistently cross the Mexico-American border each year. Wright told the story of the day she got a glimpse of yellow in the corner of her eye, but rather than the suspected butterfly, a second glance proved that heavy, yellow machinery was making its way on to her property. Some of the men exited the large vehicles and began taking samples of the land. Confused, Wright confronted them. She asked the men why they were there, and their response was short. The men stated they were working to clear the land. Wright further questioned them about why they would be working to clear her land, specifically. The men were taken aback and did not answer Wright’s inquiry. Rather, they simply mentioned they would need to excuse themselves and talk to their supervisor.

Trump and his planners are going to have two options moving forward: play by the rules, or be prepared for a court date.

Essentially, the administration is moving onto and through private land without doing their research first. By this method, eminent domain problems are going to be inevitable. Just like Wright, her property is hers unless the administration correctly invokes and satisfies the elements required by eminent domain. Furthermore, despite the administration’s attempt to bypass certain laws and regulations, constitutional guarantees are not bypassed by a simple department waiver. In short, Trump and his planners are going to have two options moving forward: play by the rules, or be prepared for a court date.

Taylor Elkins
About Taylor Elkins (7 Articles)
Taylor Elkins is a third year law student and serves as a Staff Writer for the Campbell Law Observer. Born and raised in Owasso, Oklahoma, Taylor went to Baylor University where she obtained a degree in biology and political science. During her time at Campbell, Taylor has worked at the North Carolina Department of Justice in the Criminal Appellate Division. She won Campbell's Richard Lord Intramural Moot Court Competition, and is now a member of Campbell's national moot court team. She is interested in patent law as well as appellate advocacy.