 Is this on? It is on. Okay. Hi, everyone. Good morning. Thank you for coming. My name is Yulia Panfill and I'm the director of the Future for Property Rights Program at New America. Our program works on connecting policymakers and technologists to solve land and property rights challenges around the world. And today we're here to talk about a property rights challenge here in the U.S. at our southern border. I'm sure everyone has been following the back-and-forth over the proposed border wall, the political feasibility of it, whether Donald Trump will get funding. But what we're here to discuss is the human and legal aspect of the fact that any border wall would likely deprive thousands of individuals, families, and entities of their private property rights because their land would need to be taken in order to construct the wall. So I'm really honored to have a fabulous panel here with me, starting all the way to the left, Mary McCord, who's a senior litigator with the Institute for Constitutional Advocacy and Protection at Georgetown Law School. And Mary was formerly acting assistant attorney general for national security at the DOJ and is currently involved in a legal fight on behalf of La Lomita Church on the border. Then directly to Mary's right is Ilya Somin, who is a law professor at George Mason University and has literally written the book on eminent domain. And finally right next to me is Kya Koliar, who's an energy and environment reporter for the Texas Tribune. And she's been following the story of what is happening on the ground with these potential takings. She's been writing an investigative story called The Taking about this issue. So we're going to run a quick two minute clip to set up the discussion and then we'll do a bit of Q&A here and open it up to the audience. Road called Oklahoma Avenue. It runs parallel to the Rio Grande, the border between the United States and Mexico. The river flows a few hundred yards from the farms and homes that dot the area. In 2007, Oklahoma Avenue became ground zero for the construction of a border fence to block people from illegally crossing into the United States. The first step, homeland security had to take a swath of land between the road and the river. Under a process called eminent domain, the government must file a declaration of taking. It allows the government to seize private property right away. In exchange, the feds have to pay landowners for the damages done to the property. Under the U.S. Constitution, those payments are supposed to be equitable. But as the people on Oklahoma Avenue learned, the government did not play fair. If you hired a lawyer, you could get way more money than if you faced the government alone. Same land, different payments. That's the story of scores of property owners forced to sell land for the fence across South Texas. It was a land grab marked by incompetence and inequity. On Oklahoma Avenue, the disparity was especially clear. Juan Covazos worked most of his adult life as a teacher in Brownsville's public schools. He owned a home on 30 acres along Oklahoma Avenue when the government came for the land. The government, what they want to do, they'll do it regardless. We were totally against building the border wall, but we couldn't, you know, we couldn't do anything about it. That's why we didn't go through a lawyer. They throw the eminent domain at you. Covazos didn't try and fight it. He figured a lawyer would cost too much. They paid us for it. 25,000 for the two and a half acres. We thought it was a visible price. Like scores of others, he didn't try to negotiate. Only years later did he learn that neighbors with similar land had gotten much more. Now, says Covazos. We got screwed by the government. See, that's a signal that he's gonna close on me. Great. So we'll start by having each of the panelists starting with Mary just introduce themselves and say a few words about their involvement with this subject. So, Mary, why don't we start with you? Sure. As Yulia mentioned, right during the introductions, I do constitutional impact litigation at Georgetown Law along with the help of some students. And we got involved frankly, when we heard that what was happening on the border included the taking of property that would, if the wall is built as currently planned, cut off in an historic Catholic chapel, La Lomita, actually cut it off on the south side of the wall. That's because the wall, I think a lot of people don't realize, at least in Hidalgo County, which is part of the stretch of wall that's been funded already. It was funded last March, is not actually built on the border. It's planned to be built on levees that are inland of the border. And therefore property gets cut off on the other side on the south side of that. In this case, in the 1800s, the missionaries, the Catholic missionaries who were in South Texas built this historic chapel in the mid 1800s. It was rebuilt in 1899 on its current site. It is a one room lovely chapel that is has no electricity or running water, but is still in use today. It's the mother church to a bigger parish four miles away, our lady of Guadalupe. And it is used for special prayer services for a large Palm Sunday service for baptisms, weddings, and on a daily basis for prayer. I was down last week and you walk in and there are candles lit, there are flowers, there are people coming and going. The wall would effectively physically cut off access to it and stand as a real counter symbol to the teachings of the Catholic Church and universality, openness, the need to provide for basic needs and necessities for all people, including migrants. And so that's why our Institute got involved in supporting the Catholic Church there in opposing the use of eminent domain to take that property and in doing so relying on the Religious Freedom Restoration Act and that act prohibits government actions that substantially burden the exercise of religion unless there is a compelling governmental interest and no other means of protecting that interest. And the government's made no such showing at La Lomita so far. Thank you, Mary. Ilya. So I'm a law professor at George Mason University. I teach constitutional law and property law and among other things I've written a lot about eminent domain, including two books, one of them being The Grasping Hand, which is about the Keelow case and issues related to that, one of the Supreme Court's most famous property rights decisions. In more recent years I've also written a good deal about immigration policy and related issues and obviously the question of the border wall brings together both of those. And what you see in past takings for border barriers is some of the same sorts of abuses that we observed more generally in the eminent domain. One is, as you saw in the video, systematic undercompensation of property owners that particularly if they're poor or legally unsophisticated, they get much less money than even the current interpretation of the Constitution by the Supreme Court requires. And of course, even when you do get the so-called fair market value compensation that the Supreme Court says is required, often that doesn't fully compensate people for their true losses and we see both of those problems again and again with takings under the Secure Fence Act of 2006 and other border barrier takings should Trump get the full over 1,000-mile-long wall that he has been advocating, obviously this probably repeated on a much larger scale. It would be one of the largest takings in modern federal government history and it would probably harm hundreds or even thousands of people. In addition, depending on what legal authority he might try to use to build this wall, there might be other issues with abuse of emergency powers and the like. As I understand it, even if today's deal goes through, the emergency power option is not off the table because the deal would only give him about 55 miles of the wall that he wants. So if he does try to proceed with emergency powers, that would raise a variety of other issues. And if you were to get away with it, that would set a dangerous precedent in terms of using money that had not been allocated by Congress to build the wall and also to use eminent domain. Normally eminent domain is supposed to be specifically authorized by law here. There would not be such a specific authorization, which is a real problem. Thank you, Ilya and Kia. Thanks for having us. So I first started reporting down on the border shortly after the presidential election in 2016. And as an energy and environment reporter, I was specifically interested in the time about the environmental impacts of a contiguous wall that I would have. And our point of reference for that is the hundreds of miles of fence that was built under the Bush administration or authorized under the Bush administration constructed under the Obama administration. So went down there, toured the fence, cut straight through a big nature preserve, there are a bunch of endangered species down there. So scientists said having a contiguous wall, at that point it was President Trump was talking about having a concrete huge 40 foot tall kind of thing that was going to cost $25 billion or something like that. And so just explored the environmental impacts of the existing fence and then tried to project what would happen. And during that reporting, I built up a lot of sources, met a lot of land owners who had had their property seized for the fence. The nature conservancy was my main entry point because they had had a ton of land seized. The nature conservancy, the federal government even has been buying up land down on the border for decades to try to preserve it and nurse these endangered species, including these really cute wildcats, the Ocelot and the Jagarundi, back to life. And the US Fish and Wildlife Service was really pitted against Homeland Security back about a decade ago and they were really mad about it. And so anyway, I built up sources and then we were approached by ProPublica, which is another nonprofit news organization about doing a project examining how the federal government went about seizing land to build the Bush-era fence. And so we examined the hundreds of imminent domain cases, the takings cases that were filed. We went door to door, knocked on doors, talked to land owners about who had the fence running through their backyard about what their experience was like. If they were aware that their wealthier neighbors who hired lawyers got a ton more money per acre for their land, that kind of thing. And we discovered just vast disparities in how much people were compensated. And other just huge problems was how the federal government went about seizing land for the fence. It was rushed. I think we ended up describing it as a botched land grab and a warning for the future. So it's definitely, you know, we'll see what happens. And hopefully it's maybe not as rushed next time. But thank you, Kia. And I'll actually turn it right back to you to just set us up. Can you describe the current situation at the border with respect to put like the state of property seizures? Sure. There's a lot of activity down there already. A lot of people have forgotten amid the recent craziness that Congress actually authorized 1.6 billion in border security funding last March as part of an overall spending bill that averted another government shutdown. It was so it was a host of border security items. But it did include 640 ish million to build several dozen miles of new fence in the Rio Grande Valley. And that construction is expected to begin. You know, they said this month, it'll probably be sometime this year. So people are, you know, kind of camped out seeing, you know, when the bulldozers are going to show up there've already been reports of sightings of bulldozers. And there are, you know, massive protests going on pretty regularly. Mary mentioned while we made a chapel. So the big points of contention with the construction of this wall is or fence is that it would, you know, run through, you know, religious sites. It would run through the National Butterfly Center. It would run through Benson State Park. I've been reporting some on how the, you know, state parks department says we're gonna have to shut down this park if you build a fence through it. So yeah, there's a lot of activity. The rest of that money was not the rest of the money, but it also included money to replace and repair fence along the entire border. So we've seen replacement of some fence and you see images, I think in San Diego of, you know, where Trump says he's already built a bunch of wall. And that's mainly replacement. But they're gonna break ground soon on on this few dozen miles. Is it 33 or 61? Mary, do you know? I thought it was 33. 33. Yeah. It might be 61 at some point. Great. Thank you. And I'll ask to further set us up a bit. Either Mary or Ilya, can you just give us a very quick working definition of eminent domain? So we kind of have a common definition that we're the expert in that. Sure. So eminent domain is simply if the government wants to seize land from an unwilling owner, then it's a procedure where if it's authorized by legislation, they can go in and say, we're going to take your land by eminent domain. They do have to pay compensation. But it's compensation in theory at least it's supposed to be fair market value reviewed by a court rather than simply letting the having a negotiation for a price where the owner can say no if they don't like the price. And as I mentioned before, as a practical matter, often people don't get the compensation that in principle the law requires. There are, I think legitimate purposes for eminent domain, but in general, there's a long history of eminent domain abuse for a variety of different kinds of purposes where not only do people not get compensated fully, but also the use of eminent domain often destroys far more economic value than it creates historically doing things like destroying entire neighborhoods. And the like, I think these border takings also fall into the category of takings that destroy a lot more value than they create. Great. Yes. Add to that. Until the Declaration of Takings Act was passed, as my understanding and Ilya I'm sure will correct me if I'm wrong about this, the government when it wanted to use eminent domain would seek to use that and offer compensation, but would not actually be able to take the property until there was litigation or agreement on the on the amount of just compensation. That allowed for the takings to get held up and delayed for sometimes years while parties are arguing over the compensation. So in the Declaration of Takings Act, which is sometimes referred to as a quick take, that allows by Congressional authority by statute allows the government to file a declaration of taking post some amount of bond as just compensation and title automatically transfers to the government at that with that filing, meaning that then you can litigate over compensation. You might litigate for five or six years or more, but the property is taken already. And that's what at least with respect to La Lomita and the other properties I'm aware of right now in the section of the border wall that has already been funded that we were just talking about. That is my understanding of what the government's doing. It's doing these declarations of taking. That's what it certainly did with the diocese property. Thank you, Mary. And I'll bring it right back to you. What defenses do people and organizations have if they're on the wrong end of a takings case? So for most people, corporations, property owners, there is very little as as Professor just noted a moment ago that the key to domain is is their authorization. So you can challenge that there is no authorization for this taking. But assuming there is authorization for most people, it's really just argument over just compensation. What we think is different about the diocese property, the church property, is that the Religious Freedom Restoration Act is a statute itself that prohibits government actions that substantially burden religion. And that act itself includes a provision that says it provides for judicial relief to be ordered when there's a government substantial burden on religion that can't be justified. And it also says that it applies to any other federal law statutory or otherwise. So if the government is using the Declaration of Taking Act, another federal law, the position of the diocese in our litigation is that the Religious Freedom Restoration Act, I hate to use this word, trumps that and essentially means that if there is this substantial burden on the exercise of religion, there is an affirmative challenge that can be made on behalf of the diocese that the Declaration of Taking Act does not, that there is no not authorization for that. I just want to say that as a, you know, reporter who knew virtually kind of nothing about property rights law before doing this big project, learning about the Declaration of Taking and quick takes was just mind blowing because it allows the government to take your land almost immediately if they have authorization and pay you later. So one attorney told us in theory, you know, the government could file to seize your land when the court's open in the morning. And if a judge approves it sometime during the day, a bulldozer could be running through your land by, you know, 5pm or that evening. I don't know if you, which just blew my mind. So anyway, I don't think a lot of people realize how potent and powerful the Declaration of Taking is and how just like powerful the federal government is in terms of them in a domain. Yeah. So, so can you, the, you know, these land takings for a wall have been going on since the Bush years. How is this, how is it different now? What's the, how is the situation different now? Mary might know that more than I do. I mean, we know it's going to be probably wider spread. When, you know, last time Congress gave DHS like less than a year, a little over a year to build 700 miles of fence along the border, borders, you know, roughly 2,000 miles. So they were, you know, that was a big factor. And I think how botched the process was as they were rushing, you know, they had to file hundreds of, you know, takings cases, they had to buy, you know, hundreds of pounds of steel, execute all these contracts in less than a year. And so it was a very rushed. And so one thing I'm interested to know is, you know, what kind of deadline, you know, are they going to give them for doing this? And we've heard one of the guys who was in charge of land acquisition under the, for the Bush fence is now working on the, you know, the Trump air offense. And he said, you know, we're going to do it better this time, we're going to, you know, treat landowners more fairly and be more methodical. And, you know, it's like, we'll, we'll see, we'll be watching. So as Ilya said, I think it'll just be really widespread that the seizures for the Bush air offense were already, it was already the biggest, you know, federal government land grab in decades. So this would be much bigger than that. And, you know, a lot of the same issues would come up. Great, thank you. So a question to Ilya and Mary. Trump has been threatening to use emergency authority to build the wall. Can he do that? So I would say the right answer is no, but it's hard to be certain whether the courts will give the right answer because it would raise a bunch of issues that haven't been mitigated before, at least not in the same way. If you look at the issues that would come up, one would be whether he can declare a national emergency about this at all. I think that probably courts would let him do that because even though, frankly, there is no real emergency, the way the laws are written probably would end up giving a lot of discretion and deference to the president about declaring emergency, even if it isn't done in good faith, and even if the evidence doesn't really support it. But the fact that he can declare an emergency doesn't automatically mean he can use money generated that way to spend for building a wall. There's a specific list of statutory powers that he could use if he declares an emergency and to make a long story short, the particular provisions that are cited as possibly giving authority to spend money for a wall are ones that don't really fit. They seem to be ones that would enable him to build facilities to support military operations and the like. It's not at all clear that the wall would actually support the military in any way. And in fact, there are laws forbidding the use of the military for domestic law enforcement, which includes immigration law enforcement. Assuming he can use emergency powers to secure money, it doesn't follow necessarily that he can use eminent domain. Longstanding Supreme Court doctrine says that the use of eminent domain has to be expressly authorized. That means it has to be specifically stated in the law that you can use eminent domain for this particular purpose. It can't just be inferred or assumed. And as I look at it, none of these emergency laws specifically say that you can use eminent domain to build border wall facilities that haven't otherwise been authorized by Congress. So that issue would also have to be litigated if he were to use the emergency powers or try to use them. And as I understand it, even if today's deal goes through, the emergency issue is not enough to get off the table, and he has continued to threaten to try to use it to build more wall than the deal would authorize him to do. The only thing, that was a perfect good summary of a lot of the problems. The only thing I would add is that under the Anti-Deficiency Act as well, that prohibits the use of monies that haven't been appropriated. And so Congress is the one who holds the purse strings and I think would object rather roundly to having other monies be reappropriated for this. And also under, there is some authority of the president to sort of repurpose monies for the military, but those have to be repurposed for emergency situations for things that are already authorized, civil works projects, military construction projects, and the like that are already authorized. And of course, that wouldn't be the case with the case here. Was it the Secure Defense Act in 2006 that authorized use of eminent domain? There is indeed authority to use it for the fencing that's actually authorized by the Secure Defense Act. As I understand it, all or nearly all of that fencing has now in fact been built, so you can't use that authority to authorize eminent domain in other places. And of course, it is in fact in these other places that they would want to build the wall now. But yes, with the Secure Defense Act, they did, I think, have specific authorization to use eminent domain in this case. If at least, if there was an emergency powers, he would not. It was up to only 700 miles, right? Yes, that's right. So this question is a little bit of a political hot potato because in a way, it's pitting two conservative principles against each other. On one hand, the wall is one of Donald Trump's core campaign promises and his base is very much supportive of building a wall. On the other hand, protection of private property is the bedrock of conservative philosophy. So, and you see certain members of Congress, actually, Republican members of Congress coming out against the wall on protection of private property grounds, like Will Hurd, for example. Could I ask you to, you know, whoever would like to take this question to speak about this dynamic and how you're seeing it play out? Yeah, so the wall is already unpopular, it's actually more unpopular even than Donald Trump himself is, but it is supported by a hard core of his base, which includes a lot of people who either don't care or don't know that much about the property rights issue or who prioritize blocking undocumented immigration over most, if not all, other values. So, because this thing is already unpopular, there might not be a lot of space for it to get even more unpopular, though that might happen to some extent if you have additional border takings and some of them affect highly sympathetic people who is their homes or businesses or whatnot. So, I think therefore that from Trump's point of view, he thinks that it's worth the political hit with some other people to try to satisfy his base. Whether that's a correct political calculation or not we'll have to see if in fact he is able to build more of the wall. But the other thing at issue is that he really hates to look weak and look like he's backing off any of his demands. You can argue about how much that would actually damage him if he were to do that, but he clearly feels that it's very important to avoid looking like he's back down over anything and therefore I wouldn't hold my breath about him just giving up on this idea anytime soon. Though, of course, lots of things have happened in recent American politics that I didn't necessarily expect would occur. So, certainly a climb down on the wall can't be completely rolled out. You explored that issue in our investigation and I think a lot of Republicans who support the wall and also property rights don't have a very good answer to why they support the wall. And in Texas we have the legislative session going on right now. There's been some legislation filed that would strengthen private property rights during land seizures. I think it might be limited though to private companies taking land. Last time it was more expansive and would have probably applied to land wall seizures. But again, federal law, Trump's state law, they would be seizing it under federal law and though it doesn't matter very much, but I do think state lawmakers are trying to say we tried to do something. But I love reporting on stuff where the people of an opposite ends of the political spectrum agree and I think it was the Kilo case we mentioned incited just uproar on the left and the right. It was like you had Rush Limbaugh and I forget who else, just, you know, Bernie Sanders agreeing and railing against it as a huge abuse and of federal eminent domain powers and state government eminent domain powers, yeah. And yeah, it's a fascinating issue and one I'm definitely worth exploring more. I think another point here that I kind of alluded to this during the introductions is that no one's ever really happy about eminent domain being used against their property, whether it's for building a highway or building a border wall. I mean, it's unless the landowner has been wanting to sell that property, it's usually not something that they're anxious to have happen to them. But I actually don't think a lot of people around the country do realize that this wall is not just at the border. If people think you own the property but the wall's at the border of your property because the wall's at the border with Mexico, then how much of an impact is it having on you? It's just a wall at the edge of your property. I don't think a lot of people realize it is cutting through property. I mean, when I was down last week, not only would it cut off La Lomita Chapel, but as I drove along the levee to get to the Chapel, there are housing communities that are gonna be cut off. People will literally have to go through a gate to get to the house and these are US citizens and LPRs, their houses that they've spent money on are there between the levee and the river. There are restaurants with big outdoor spaces because it's beautiful there. You're right in the valley, you're right on the river, it's lush, it's green, it's a wonderful place to have big parties and bonfires and these businesses are, who's gonna come through a gate assuming there is a gate to go to a restaurant there behind this big hulking wall? So I think that when you talk about normal, property ownership is normally a conservative sort of principle that people support even on the right and so is border security. I think that to highlight the fact that people are actually losing their property and people are becoming, will be on the south side of the wall is something that hasn't gotten enough publicity and might actually cause even stronger alignments against it. In addition to property rights and constitutional law, one of the things I write about is political ignorance. I have a book on that subject and for perfectly understandable reasons, most people don't pay very much attention to the details of public policy controversies. They're spending time on other kinds of things. They have jobs, they have families, they have entertainment they wanna pursue and therefore it is quite possible, though I don't know of survey data specifically about this that many people who support the wall just have no idea that it would require taking private property or at least have no idea that it would require taking a lot of it. It's with the Keelow case in 2005, that was an instance where because of this high profile Supreme Court decision, sort of there was an event which really focused a lot of public attention on eminent domain abuse and the harm that it causes with the wall, while the wall itself has gotten a lot of attention, the eminent domain aspect has gotten less and of course it's competing with a lot of other things that are in the news, both political and otherwise, it's possible that if you have more and more wall takings and more sympathetic cases of people being forced off their land, more public attention will be attracted to this at the same time, as I noted earlier, the wall is already unpopular, which is a good thing, but when something is already highway unpopular, there may be a limit to how much you can make it even more unpopular because a lot of the people who support it are ones who care about it a great deal and may be willing to, in effect, pay a high price to see it happen if they genuinely believe that this is the only way to prevent some horrible threat to the nation. I think that's not true, but those people who believe it will be very difficult to shake them of that belief. I think it's important to note that one reason that Texas is and has been and will be ground zero for Lance users for the border wall is because 95% of the land is privately owned. So in New Mexico and Arizona, back when they were building fence 10 years ago, the federal government already owned a lot of the border land in those states. It's huge federal land ownership in those states, and so they already owned it, so they were just able to build on the land they already owned, but in Texas, 95% of the land's privately owned, so it's gonna be, if they build more fence, it will be certainly, Texas will be a focal point for sure, and I wanted to emphasize Mary's point of the border between Texas and Mexico is a river in borders, the Rio Grande, and the border technically is in the middle of the river, and it's impossible to build a fence in the middle of a river. It's also impossible to build a fence right, I mean it would be, I guess, possible to build it right along the river, but it would be very expensive, so it's just these straight lines kind of cutting along the river, and in some cases, the river and the fence are a mile away from each other, so you have, we talked to landowners, I was telling them before we came out here, the most egregious example we found was a family that was living behind the fence and what critics call a no man's land, their house caught on fire, firefighters could not get in because they didn't have the code, and the family fled and heard their goats screaming as they were burning alive, and that was the most egregious example that we found. People like Juan Covazos, you saw in the video, the federal government gives them secret codes to open the gate so they can access their land on the other side, but emergency responders don't, I guess, always have those codes or there can be confusion about it, so there are huge implications for having land stranded on the other side, and that's the reason that the state park that I've been reporting on says that they're gonna have to close is because a majority of the land would be stranded behind the fence, and when the land was gifted to the state several decades ago by this wealthy family, they said it's gonna have to be accessible and usable and they're like, we're not gonna be able to meet the conditions of the land gift if a wall is built through it. I think it's generally right that the vast bulk of the land that would need to be taken is in Texas, but it's worth noting that in some of the other states there are also issues, for example, in Arizona, some 62 miles of the stretch of border where the administration envisioned building a wall is in fact owned by a Native American tribe. I can't pronounce their name, unfortunately, but it is in the Washington Post column I wrote on the subject a few weeks ago, just Google my name in Washington Post in a wall, and the tribe is very much opposed having a wall in effect bisect their land and making it difficult for them to continue with the normal life. And so if they were to be subject to imminent domain that would inflict a considerable amount of harm and not just in Texas. Can I add one more? Yes, please, please. I think another thing that a lot of people don't realize is that by statute, Congress has given the secretary of DHS the ability to waive application of most federal laws, really all federal laws that otherwise protect the environment, they protect migratory birds and animals, they protect historic sites, they protect burial sites, they protect the administrative procedure act, the main way of challenging government action. So in, and this isn't just in this administration, it happened in previous administrations the secretary exercised that authority and the authority is specifically given to the secretary when it is necessary to waive application of these statutes in order to more effectively and expeditiously build the border security. And so in October of last year, Secretary Nielsen did waive a long list of statutes with respect to this property we're talking about now in Hidalgo County and other areas of South Texas that's already been appropriated. Happily the secretary did not waive the Religious Freedom Restoration Act and that would raise some other, I think, interesting issues if she had, but that means things like endangered species, all those things, all the normal protections you would have, they're just not there, they don't exist. That's one challenge we had in reporting on environmental impacts was, the federal government didn't require any environmental studies. So these private scientists were rushing to do established baselines of animal migration patterns and all of that so they could compare it to what happened after. So there's not much data on the environmental impacts because the federal government wasn't required to do these studies that they normally have to do that can take a long time and thwart projects entirely. So that's another huge point to make for sure. Great, so I'm just going to ask one or two more questions. So if please prepare your questions, start thinking. So after the last few minutes of discussion, I have to ask, is there any sort of an opening whether it's politically or legally to curtail the power and use of eminent domain given that it's so expansive and there's been this trend over the last 100 years of it actually, the justification for eminent domain being expanded to include, for example, economic benefit, which didn't used to be the case. Is there any opening to kind of narrow this back down? Yeah, there's a number of things that can be done in the aftermath of the QO case. Some 44 states or 45 states now have passed eminent domain reform laws, which restrict the use of eminent domain, restrict the purposes for which it can be used. And also in some cases, increase compensation and adopt other kinds of reforms. Some of those reform laws, quite frankly, are ineffective and actually do very little, but others are much more effective and that can be copied in other states. In addition, my hope is that the Supreme Court will reverse some of its previous precedents like the QO case, which allows condemnations for even private economic development. The Fifth Amendment says you can only condemn property for a public use. The court interprets that as anything that might benefit the public in some way, but that rests on a narrow five-four decision and it's possible there will be the ability in coming years to reverse that. So what I would advocate is a combination of legal and political efforts to promote reform in this area in a way that's been successful in a number of other areas of public policy would respect to things like the wall-taking, public use is not really an issue there because what happens there is that the government would own the wall, it would be a public facility and therefore would fit even a narrow definition of public use, but there are other kinds of things that can be done there. Ultimately, I think the best reform is simply to remove legislative authorization for border wall-takings on the grounds that what they seek to build causes more harm and good, but there are also ways to increase compensation, increase procedural protections, for example, you can repeal the law that was talked about earlier that authorizes so-called quick-take condemnations and you can require payment of compensation in advance and automatic procedures requiring a neutral body to assess the amount of compensation that is due. I can go on, but there's a wide range of different reforms that can be done, some more moderate, some more radical, like the ones that I would advocate, but I don't believe that the best should be the enemy of the good. Moderate reforms that improve the situation are still worth doing even though they wouldn't fully solve the problem caused by excessive use of eminent domain. Do those are quite a federal takings though to state laws? The state law can only constrain state takings, but the vast majority of takings in this country are in fact done by state or local governments. Federal takings are comparatively rare, though of course the border wall situation is an exception to that. So to reform federal takings, you would have to pass federal laws and regulations constraining that, state law wouldn't be enough. Great, one more question just to wrap up and then we'll open it up. So what is actually happening to, currently, to people whose land is being taken and what has happened to them in the past? So are they typically receiving compensation and having to move and they're moving somewhere else nearby? Are you seeing relocation far away? Are they, are these people kind of coming together or banding together in any way and trying to advocate for reform? Just what are you seeing from those who are actually being impacted by this? I didn't find a lot of examples of displacement. Most people stayed in their homes and I guess to the federal government's credit they made sure to route the walls. In certain areas, the wall was built on top of a levee and that was actually an interesting kind of political deal that they made in Hidalgo County, Texas. There were these earthen levees that were crumbling and FEMA had been threatening to decertify the levees which would have required a bunch of very low income residents to purchase flood insurance. So when they were trying to generate public support for the fence, they said, we'll rebuild your levees as long as we can put our fence on top of them. So there was already not homes along near those or on those levees. So there wasn't a whole lot of displacement and yeah, people like I said on Oklahoma Avenue and the video that mentioned the fence just runs through their backyard and they're just kind of living with it. You know. All right, well thank you very much. Let's open it up to questions and Tim in the back will just please raise your hand and he'll come by and give you the mic. Sure. We'll go one, two, three, yes. I wasn't, my name is Bill Courier if you want to know names. I actually wasn't aware that there was a federal and a domain statute but did Congress reserve any aspect of it to approve or disapprove of a particular step taken by the federal government in any particular set of circumstances or just a broad ability for the government to invoke and take. To my knowledge, there isn't anything that's specifically reserved. If they did reserve it and say that Congress had some kind of right to veto a particular taking or to like that would run afoul probably of a Supreme Court decision called INS versus Chata which said that it's unconstitutional for Congress to say the executive can do X but we reserve the right to veto it because they are at the only way that the Congress can constrain things are already authorized if it's a Congress passes a new law which would be subject to a presidential veto. So I don't think you can correct me if I'm wrong but I don't think that there's a specific federal law which says that we authorize border takings but say by a vote of Congress they can disapprove them other than the fact obviously Congress can always pass a law stripping authority that's been previously granted which of course would be very happy to see Congress do but there's no sort of ability to engage in sort of vetoes of specific takings other than by passing a new law like that. The reason I asked is the only analogy that came to mind or at least the recent one had to do with sanctions being lifted by the government and the Congress having the ability to revisit that question and under the right circumstances challenge the government's decision. So it can't be in every way. As I understand it there is something like that in the Iran sanctions legislation but in order for Congress to do that they would have to pass a regular bill that the president could veto that's why it was sort of a dead letter under Obama because Obama would have vetoed any such attempt to reinstate the Iran sanctions but Congress does not at least under current Supreme Court precedent Congress doesn't have the ability to say we give you the authority to do X but we reserve the right to rescind or modify that authority without the president being able to have the opportunity to veto the rescission or modification of course if he does veto it then you have to have a two-thirds super majority in both House of Congress which in our time of partisan division is extremely difficult to do. We should also be noted that Trump is a huge eminent domain supporter. He's wielded eminent domain for his business purposes. He had a case kind of similar to Kilo in that he tried to displace this little old lady to build a limousine parking lot near one of his casinos and did he lose, he lost? He ultimately did lose and the case is called Karita versus Bannon actually had a very small role working for the organization that was then litigating it on behalf of the property owner back 20 years ago now but he is an outspoken defender and has been for a long time a very broad eminent domain power. He's actually wanted a few prominent political figures that actually praised the Kilo decision which he called wonderful and a great decision and so forth so he's a longstanding defender of broad eminent domain authority not just for the wall but for many other things. To get a perfect example of what Professor Soman was referencing is under the Emergency National Emergency Authorities Act. There is the ability for Congress through resolution to disapprove of exercise of emergency authority so if the President were to use emergency authority to try to reallocate funds for the building of the wall, Congress could disapprove it but that would trigger exactly the process that Professor Soman indicated so that would be a legislative act to be treated like a bill, the President could veto it and when it comes back it would have to have a two thirds vote to override. There is some talk that if you were to clear the emergency there would be enough votes even under a Republican controlled Senate to pass such a resolution but there probably would not be a two thirds majority certainly not in the Senate and probably not even in the House and under the currently dominant interpretation of the National Emergency Act that resolution of disapproval would have to be ordinary legislation. If you adopt a different view and you say it would not be subject to veto then that probably would be unconstitutional under current Supreme Court precedent. I think we had a question up front and then. Okay, sure. Hi, what's the process for the government deciding how much a piece of property is worth and then my second question is for these folks on the border that have received significantly less than their neighbors is there any legal framework that they can go back and fight to get an equal payment for their acreage? Do you want to? So I'll start and Mary will correct me if I miss something of significance. Usually the government will start off by they're saying we're going to condemn your property and this is our offer which may be based on using appraisal of some sort but often the appraisal methods they use are one strongly biased in favor of their position that is they tend to low ball people. The property owner can refuse and say, no, I want to go to court to fight your appraisal and the two sides can then litigate the issue have a quashing experts and so forth and a court will decide. However, property owners who are not legally sophisticated or who lack the funds for a prolonged legal battle often are at a disadvantage in this process. That's why in Kia's work with the Texas Tribune and ProPubica they found that while sort of wealthy and legally savvy property owners can get pretty good amounts of compensation that's not true for most of them. This problem is also exacerbated by the quick take provision that we discussed earlier where if you can test the compensation amount you might be in litigation for months or years and meanwhile they've already taken your property so some owners might reasonably decide that I'd rather have a bird in the hand than try to hold out for a bigger bird in the bush that might take years to get and that might involve expensive litigation and the like so there are ways you could reform that process but it would probably require either new legislation or court decisions striking down the existing process which I think such decisions would be justified but they would be something of a break with precedent. One of our other findings was that they didn't conduct formal appraisals. Like one guy got in the mail I think it was like a screenshot of a Google map with like a red thing around you know he was like is this even my property? I don't know and he inquired about it and they said we don't have time or something to basically do a proper survey. That's a good question. I would say you know what has been happening at the board is the first thing that happens is a letter from Customs and Border Patrol which has this aerial view with sort of a red outline of the property that the government seeks to take and they offer a nominal amount at least that's been my experience recently and partly that's because the first time they wanna come on your property it's to survey it to see can we put the little wall where we think we wanna put the wall? We could take some soil samples we may be clear some brush determine and so they think that that's worth very little the government and they've been offering for this temporary access not for a permanent tax taking $100 and maybe that's sufficient if it's unused property but maybe it's not at all and so many of the property owners just sign that they just give the consent. Great I'm gonna get a few thousand dollars sure. And then the next step at least for the building wall would be to actually send the letter offering to buy the part of the property to actually permanently take it to build the wall and again if you consented that point I think your question went to can you go back later and say hello you know what I didn't realize my property was worth so much more or that the rich guy next to me got 10 times more than I know I mean you've consented you've sold it by it wasn't through litigation it wasn't through you know unless you could prove some sort of fraud or something like that on behalf of the government you consented and you're just stuck so and for those who can't afford attorneys this is a huge issue now there are civil rights organizations on the border Texas Civil Rights Project is one of them I think that I heard from another who wrote to me yesterday wanting to be involved with private property owners who might need help in this litigation so but they do things as nonprofits right based on offering their services for free as we do as well but if you don't have that it's very difficult for someone who doesn't make a lot of money to afford to contest us. Another thing is there are scores of cases takings cases from the Bush Air offense that are not settled still to this day like they still have not agreed on what just compensation is. This is one of those areas where there's a significant gap between the law and the books where if you read Supreme Court decisions they say you must get fair market value compensation meaning the market price of the property but what happens on the ground may be very different from what's written into the official decision of the Supreme Court in that to actually get that fair market value compensation may require legal sophistication or prolonged legal battle and other things that many people who are in this situation either don't know about or don't have the time and resources to fight for. The question is the category of ownership along the border like private versus nonprofit you mentioned the Native American tribe in Arizona does that make that work your work easier or harder and then to the point of Ulias the Ulias program is doing so much work outside the country is there a lack of clarity as to where the property lines are like is it are the property lines pretty clear as you do the work you're doing? I am trouble hearing that. Can you like spend and restate the question? Sorry one is the problem along the Texas border the same as it is in other countries where there's just simply we don't know where the lines are of where one person's property begins one person's property ends and then two does it make your work easier or harder if the properties along like your coalition of property owners is some are private some are state some are non state entities does that make sense? It's okay. So what I've seen and I'm probably seen less of this than others on this panel but what I've seen is when this letter comes they've you know I don't know if it's from Google Maps I mean I've seen what they sent to the diocese and they have aerial photos and they've got lines marked but then they also have in paper lengthy descriptions of from previous surveys of property because most property owners in the US there's been a survey at some point of their property so there's boundaries at various places and so usually that first letter and then certainly the if they file a case a declaration of taking in court that case includes a very specific description from point marker A at the you know this latitude and longitude to this so I haven't seen just what I've seen that being a big problem not knowing the boundaries but and when you're talking about different ownership though you know if it's federal property in fact some of the bulldozers that I think have appeared a week ago were actually on federal property that's adjacent to the National Butterfly Center because the federal government can of course do whatever it wants on its own property and then you know they have to acquire whether it's state owned or private owned they've got to acquire everything else so. You know it was unclear who owned land at some point and the federal government didn't figure it out and they compensated and some the wrong people in some cases and then when they found it out they're like oops and they didn't try to get the money back they just paid the correct owner and a lot of the most of the land down there that was seized was ranch land it was not residential it was like you know that there's huge amounts of agriculture and farming down there so I mean yeah it's ranch land and you know to answer the last part of your question about whether we know who owns the land the US does not have quite the same degree of systematic problem as some third world countries do where you know scholars have found that often there's huge areas where there's no real recording of who owns what but recording of property ownership in the US is in fact done mostly by state and local governments and there's wide variation in the quality of those records when they were done in some case you have 18th and 19th century records they're very unclear based on very poorly done surveys and the like so I suspect that there's a good deal of variation in these border areas as well in some places probably very clear who owns what in other cases as you just heard it may not be in particular in not all cases have those records been catalogued and computerized and the like so I think there's gonna be a lot of variation. A lot of land has been in families dating back to the 1700s like Spanish land grants and families have owned it and passed it on and whatever and that was another complication was like who you know there were these heirs that they had to find who like didn't even know they own the land in some cases and it was just yeah pretty nasty. The Spanish viceroy of Mexico may not always have kept very good records about who owned what and what land was transferred to somebody back in 1750 and in many we don't have such a thing in many jurisdictions of regularly going back and modernizing and cataloging the records maybe we should but many local governments don't do that. I'll just jump in here for a moment take moderators privilege buzz to answer the first part of your question which is you know is this happening in other countries and to what extent is this an issue in other countries and as Ilya alluded to particularly in developing countries I would say that it's even worse for multiple reasons starting with the justification that the government can use to take private property. In many developing countries this economic benefit justification is even wider than it is in the United States so you see many cases all over Africa for example of the national government granting the right to a foreign private company like a plantation let's say to take a large amount of private land because they reason that the overall economic benefit brought to the country outweighs the private harm to the individuals impacted so that's one. Two in many countries the land is actually owned by the government and the individuals who are on that land have long-term occupancy rights so for example Tanzania which is a country that I've done a good amount of work in the government owns the land and people who live on that land have what are called certificates of customary occupancy right so they're in an even weaker position because it's the government's land to begin with. Also as Ilya alluded to property registration systems are often either non-existent or almost unpopulated so by some figures 70% of land around the world is undocumented so people don't even have a document to stand on when the government comes to take their land to say hey I own this or I occupy this land where is my compensation and the valuation tables again are often offering nominal amount so the valuation tables for what land is worth are stuck in the 1950s let's say and they have nothing to do with the current value of the land yeah I can probably go on but yeah this is a big issue all over the world not just of land being taken by governments to build fences but just generally with displacement where outside forces come and put pressure on the land that people have been kind of living on or passing down generation to generation and suddenly they have an outside pressure that wants to take that land from them and they actually don't have any leg to stand on to say hey this is mine and if you're like I can sell it to you but you need to compensate me and that is something that our program works to ameliorate. You still have a question? Oh sorry. Just a quick follow up on the question of valuation it sounds like on the border in Texas it's enormously variable based on whether people want to negotiate with the government so how is the federal government budgeting for these land appropriations? So as I understand it there are specific amounts that are appropriated which are based on whatever Congress decided wasn't an appropriate amount and then they use those funds. There may also be some situations where they can reallocate funds from other sort of funding pots that have been put forward and of course the Trump administration is claiming that they might be able to use emergency powers to do that in addition sometimes in the aftermath of Secure Fence Act I think in 2008 and perhaps other times they sometimes allocated more money than it had been allocated before but obviously it's difficult to predict ahead of time exactly how much compensation will be paid to which people and so it may not be easy to plan it in advance. Yeah all the cost estimates you hear are just construction costs it's not it doesn't include land acquisition. Can I ask, I'm starting to came in just a bit late but what is the crop, restaurants? Sure, so the Roman Catholic diocese owns various properties in South Texas including the site of a historic chapel that dates back to the 1800s La Lomita Chapel and it was the mission of the oblates of Mary I believe were the original missionaries that literally came on horseback to bring religious services to South Texas back in the 1800s and they built this chapel and eventually as the town of Mission which is very close to McGowan became a town they built a bigger church there our Lady of Guadalupe but that parish has always considered La Lomita to be its mother church and Father Roy Snipes is the parish priest down there he's a wonderful, colorful person he's got a very large congregation in Mission and he and those who belong to that church regularly have services, prayers, baptisms, weddings, just people that go and use the chapel for prayer and the way the government's current plans are the wall would be built on a levy cutting that chapel off on the south side. So I know something about eminent domain and that we have Spanish land grant property stake and we must put an interstate through you don't get paid anywhere here with land is worth it's a bad, bad situation for the land owner but you know in this case there is the opportunity to put in a digital wall and this can be done with fiber optic it can be done with wifi and such that presents no physical barrier and I was just wondering are you sure that a physical wall is what they're planning for La Lomita and the property? We are based on the information that CBP has put out to property owners there and their own press releases and in fact your point raises a great point and it's one of the arguments we're making in our litigation is that the government has not shown that there are no other ways that it could satisfy border security other than building a physical wall and one of the points of the lawsuit is to say this wall, this physical wall would substantially burden the exercise of religion and even if we assume border security is a compelling government interest there are other ways you could go about it and you've named one yourself I'm not an expert on digital wall building but the government hasn't even explored what other options might be available Father Roy Snipes and the Bishop who actually has this property is within the jurisdiction of the diocese of Brownsville and that's Bishop Daniel Flores and he filed a statement, a declaration as part of our litigation explaining why according to Catholic teaching he could not consent to transfer property to the government and how a wall would stand as a counter sign to the teachings of the Catholic faith and their true beliefs in their exercise of religion So in that reservation you were talking about and so many rights, they have six or seven ways to be able to sue the federal government charges for any desecration of their property, et cetera so it's probable that they will not be putting up a digital wall there but it just seems to me that cases can be made to go on and put in a digital wall where necessary and really believe everybody with a lot of the problems that a physical wall presents yes, they might go on and have the cable there and people monitoring on both sides to see who's crossing and things but it's really unobtrusive I think you might be preaching to the choir a little bit I think it's difficult tonight that a digital wall would be much less intrusive on property owners than a true physical wall though in all candor I would oppose the digital wall as well, not just on property or ice grounds because I do not in fact think it's just for the government to be able to have this extensive surveillance of everybody who goes through that area of both citizens and non-citizens that raises a variety of other problems about abuses of government power but the digital wall would be less unjust and less harmful than the physical wall but it would be I think it would be any talk of it so the Democrats actually have said that in various places they would prefer sort of digital surveillance as an alternative to the wall I don't know if they've called it a digital wall as such but they have argued in a variety of forums that that would be better to my mind this approach is indeed better but it's better in the sense of being a lesser evil rather than in the sense of actually being good well and to that point I mean I think part of what we will press in litigation for the government to establish is why you need anything at all at this particular site I mean La Lomita is of course what we're arguing about and because we are able to make a religious freedom restoration act claim in that case but there's been no showing that at that site is a particular heightened risk of border crossings by legal immigrants there's no showing or no even effort to show that that's where drugs are smuggled that that's where terrorists seek to enter and there's just been nothing at all to suggest that that area even is one that would justify having a wall It certainly cannot be the case where your church is but it really is the case there Other areas in my theory will be that's right It is a literal sieve because they pardon of both sides of the border Yeah and it's also humanitarian crisis that you have about 2,000 people die in the desert every year just on this 74 mile stretch Far South Texas though has the most illegal border crossings according to CBP figures by far by far South Texas So the humanitarian crisis actually argues against barriers rather in Fordham the reason why we have a humanitarian crisis is because we make it very difficult for people to cross legally file asylum claims and the like so if you have people who are in such a desperate situation where they are that they're willing to risk dying in the desert the solution is not to make it harder for them to move around is to make it easier that's the way you address humanitarian crisis I'm just going to jump in here and just because we have two more questions that are waiting and we have eight more minutes so but let's continue this discussion after the panel is finished Has anybody does anybody know who Childless Gambino is won the Grammy anybody Childless Gambino won the Grammy you know what he won it for this is America anybody know who Cardi B is he also won you know content without context is meaningless anybody know who Lee Hart or Lee Roy Atwater was Lee, Lee Atwater anybody know who Lee Atwater was well Lee Atwater trained me but he never let me in the game and before he died he asked me to undo all the stuff that he did I was spending the last twenty years doing that so in the spirit of the name of this organization New America I'll let you in on a little secret you're all drowning a glass of water all of you I hitchhike up and down the water through you sir and I think that that's some of what Kia is doing and journalists who are really bringing attention to this issue in human terms and getting ordinary citizens and people really engaged in understanding that this is not just some obscure legal issue you know some obscure policy issue that people are really being impacted here and it's a matter of life and death so I certainly agree and we have one more question and then we'll wrap up I know I saw in the news the other day that they had a court had issued an order for the government to survey the land so I was wondering what are you guys next step on that and then also Ilya kind of mentioned this earlier on what Congress can do to kind of I guess remove the authority for border wall takings which is removing quick-taking procedures and I just want to see if you can expand a little bit more provide any more recommendations for Congress on that so with respect to Lelamita on as I indicated earlier this first declaration of taking was simply simply for temporary access to the property in order to survey and do preparatory work for the building of a wall and even though we argued on behalf of the diocese that that would somewhat burden religion we knew that it wasn't the substantial burden that would be necessary to actually prevent that access and instead said look the Bishop can't consent to it because it would violate his religious beliefs to consent we understand this court could grant that temporary access we'd ask it to be granted only you know not at times when their religious services going on and that government officials not interfere with anyone who might be worshiping there but we also made the point we question why it's even necessary for the government to do that because if the government persists in deciding that it wants to take the property to build a wall that will present a substantial burden on the exercise of religion and that's a much stronger claim and so essentially why even take this first surveying step if you're gonna lose in our view at the next step the court I think quite as we expected said well we'll worry about that when the time comes for now uh... I'll grant the government its opportunity to to take the next step we have not yet seen a proposed order from the government uh... defining sort of the the circumstances and criteria for entering the property so right now that surveying has not begun to take place so you asked about what reforms can congress do let me just suggest three levels of reforms from starting with the most comprehensive and the more specific and less far-ranging ones uh... the most comprehensive one that I think the right approach is simply to repeal all legislative authorization for the building of border barriers repeal the secure offense act of two thousand six and also ban any further wall and barrier construction uh... that would fully take care of all these problems both with eminent domain and all the other issues that and other kinds of harm that this causes a second less far-reaching reform would be to ban the use of eminent domain uh... for the building of border barriers that is they can only build barriers on land that is either uh... federally owned or land that they acquire from voluntary willing sellers a third reform uh... one actually has been proposed by the republican representative just in a mosh uh... would say that uh... it would repeal the quick take provision uh... and uh... what it would do is it would require payment of compensation before uh... any takings could take place uh... and uh... i would add to this i'm not sure if this is in his bill but i would add that there should be required mandatory appraisal by independent organization uh... so as to eliminate this possibility of sort of lowball offers based on google maps photos and the like uh... so uh... the first broadest reform it would fully take care of all the problems these other more narrow ones uh... i think are still worth doing because they would be significant improvements over the status quo even though they wouldn't fully solve the problem wonderful will please uh... join me in uh... a round of applause for our wonderful panelists thank you very much for joining us i think that there's still some coffee and refreshments in the back so please feel free to uh... stick around thank you