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Trump probably can’t build the wall without Congress’ approval

Skeptic Bob

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I have mentioned this in some threads but decided it needed its own thread. Trump keeps saying he can declare a national emergency to get the funds needed to build the wall. I do believe he probably has the authority to redirect funds to build the wall and to order the Army Corps of Engineers to oversee the construction.

However, it does not appear that the President has the authority to seize private property, even during a national emergency, without the backing of Congressional legislation.

During the Korean War the steel mills went on strike. This was obviously a detriment to the war effort and President Taft attempted to seize the mills. SCOTUS, however, ruled that the President has no such authority to seize private property without the backing of Congressional legislation.

https://en.m.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer

I’m no lawyer, but the way I read that tells me that even if Trump comes up with the money and manpower, he won’t be able to get the land. The only possible workaround to that might be if the State of Texas has the power to take the land. But what are the odds that the State of Texas would go against that many well-to-do landowners?

Am I missing anything? Are there some other loopholes to this that I am overlooking?
 

Skeptic Bob

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Copied from other thread.

This is where you are not correct. There is a 60 foot easement along the border that easement belongs to the federal government.
they can do whatever they want with it and don't need permission and they don't need to seize anything.
FDR signed this already.

He has that authority: The National Emergencies Act
 

PTF

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" Eminent domain ".
I believe the next step is to declare the emergency if nothing is solved within three weeks.
 

jdog21

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I have mentioned this in some threads but decided it needed its own thread. Trump keeps saying he can declare a national emergency to get the funds needed to build the wall. I do believe he probably has the authority to redirect funds to build the wall and to order the Army Corps of Engineers to oversee the construction.

However, it does not appear that the President has the authority to seize private property, even during a national emergency, without the backing of Congressional legislation.

During the Korean War the steel mills went on strike. This was obviously a detriment to the war effort and President Taft attempted to seize the mills. SCOTUS, however, ruled that the President has no such authority to seize private property without the backing of Congressional legislation.

https://en.m.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer

I’m no lawyer, but the way I read that tells me that even if Trump comes up with the money and manpower, he won’t be able to get the land. The only possible workaround to that might be if the State of Texas has the power to take the land. But what are the odds that the State of Texas would go against that many well-to-do landowners?

Am I missing anything? Are there some other loopholes to this that I am overlooking?

There is still a lot of land that's not privately owned that doesn't have a barrier and a lot of barriers that still need to be upgraded cuz they're the 6 foot tall Vietnam helicopter landing pads.
 

Amelia

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I have mentioned this in some threads but decided it needed its own thread. Trump keeps saying he can declare a national emergency to get the funds needed to build the wall. I do believe he probably has the authority to redirect funds to build the wall and to order the Army Corps of Engineers to oversee the construction.

However, it does not appear that the President has the authority to seize private property, even during a national emergency, without the backing of Congressional legislation.

During the Korean War the steel mills went on strike. This was obviously a detriment to the war effort and President Taft attempted to seize the mills. SCOTUS, however, ruled that the President has no such authority to seize private property without the backing of Congressional legislation.

https://en.m.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer

I’m no lawyer, but the way I read that tells me that even if Trump comes up with the money and manpower, he won’t be able to get the land. The only possible workaround to that might be if the State of Texas has the power to take the land. But what are the odds that the State of Texas would go against that many well-to-do landowners?

Am I missing anything? Are there some other loopholes to this that I am overlooking?


Truman ... not Taft ... interesting that you'd pull up Taft's name though .....
 

Amelia

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I'm betting that even with as much work as Trump has done to stack the courts with rightwing judges, those who object to Trump's end run around Congress will be found to have sufficient legal standing to keep this tied up in courts until well after the 2020 election, and the next president will just cancel Trump's order.
 

Skeptic Bob

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This is where you are not correct. There is a 60 foot easement along the border that easement belongs to the federal government.
they can do whatever they want with it and don't need permission and they don't need to seize anything.
FDR signed this already.

It appears that is true for California, Arizona, and New Mexico. But for some reason that I can’t determine, land owned by the State of Texas was not included in that act, and since then almost all that land has been sold off to private parties. And the vast majority of currently open border is on those properties.
 

OrphanSlug

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The short version is we do not know.

All things considered, the National Emergencies Act of 1976 was an effort to curb the use of Executive declaration of emergencies as a means to utilize funds outside of Congressional authorization and/or oversight. Now it has been still used some 40+ times since 1976 but generally speaking involving trade with some nation and done so under other Acts.

The issue is we are in uncharted territory with the idea that a "foreign threat" means changing the use of border security funding and/or using military funding for a domestic but still border wall.

The whole thing is subject to challenge on both the grounds of what is a threat (or "crisis") and how funds are used to build the wall as a result of. Odds are the Supreme Court will make a political decision that either way could have wide ranging implications for the use of Executive Authority under any number of Acts in the future.

From a Constitutional point of view, said another way restriction point of view, this should have everyone concerned.
 
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Skeptic Bob

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He has that authority: The National Emergencies Act

There are 123 enumerated powers in that act. In order to seize land for construction the act requires it be for military purposes. That will be a tough sell to the courts, but maybe not impossible.
 

HumblePi

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" Eminent domain ".
I believe the next step is to declare the emergency if nothing is solved within three weeks.

There are still cases lingering in courts that defied the 'Eminent domain' control of private lands by landowners that said 'no way you're taking my land'. That was in 2006 after the enactment of the Secure Fence Act, and those cases are still outstanding, no border security fence on them. That's exactly what would happen today when the government tries to gain access to any lands through eminent domain.
 

azgreg

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Truman ... not Taft ... interesting that you'd pull up Taft's name though .....

Taft did the same thing along the Canadian border.
 

Skeptic Bob

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Taft did the same thing along the Canadian border.

I would like to claim that as the source of my mistake, but in reality I was just tripped up by them both starting with “T”. :)
 

RaleBulgarian

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I'm betting that even with as much work as Trump has done to stack the courts with rightwing judges, those who object to Trump's end run around Congress will be found to have sufficient legal standing to keep this tied up in courts until well after the 2020 election, and the next president will just cancel Trump's order.
^^ This. Whatever Trump tries to do, he will face a mountain of litigation that will effectively stop his usurping of Congressional powers.
 

PTF

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There are still cases lingering in courts that defied the 'Eminent domain' control of private lands by landowners that said 'no way you're taking my land'. That was in 2006 after the enactment of the Secure Fence Act, and those cases are still outstanding, no border security fence on them. That's exactly what would happen today when the government tries to gain access to any lands through eminent domain.

It's the job of the contractor to determined the property lines then go from there.
 

Mr Person

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Eminent domain cases will tie any attempt up forever even if he goes the national emergency route today in spite of what he said.

The only way he gets a wall built anytime soon is if the military (or other comparable domestic law enforcement officials/ICE/DHS/etc) sides with him and literally takes the land at gunpoint, then ignores the courts and everything else. And then, I suppose, refuse to leave office until the very many years of construction are completed.




I doubt we're that far gone, yet. But who knows. I've heard a whole lot of support for criminality, unconstitutionality, dishonesty, anything, as long as it's designed to stick it to liberals in some way.
 

HumblePi

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It's the job of the contractor to determined the property lines then go from there.

Do you realize that there are vast ranches composed of thousands of acres in Texas that actually span over rivers, gorges and ravines and in order to erect any type of fence the actual border will have to be redrawn and moved further into the U.S., into their land which will virtually change the border and give land to Mexico? It doesn't matter where property lines are, when those ranchers get a notice from the government that the government is willing to pay XYZ amount of $ to buy the land they need under eminent domain that many of those ranchers are going to head right to their attorney's office to get a stop order on that seizure.
 

Mycroft

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There are 123 enumerated powers in that act. In order to seize land for construction the act requires it be for military purposes. That will be a tough sell to the courts, but maybe not impossible.

Can you give me a list of these 123 enumerated powers? A link would be better.
 

Mycroft

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My reading is all messed up today. It is 136 Powers. But here is the link:

https://www.brennancenter.org/analysis/emergency-powers

It isn’t light reading. Maybe there are some other loopholes in there as well.

Thanks.

This one may be problematical for those landowners who might object to the government taking their land.

7 U.S.C. § 4208
Legal provisions intended to protect farmland do not apply to the acquisition or use of farmland for national defense purposes (1990)
 

ludin

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It appears that is true for California, Arizona, and New Mexico. But for some reason that I can’t determine, land owned by the State of Texas was not included in that act, and since then almost all that land has been sold off to private parties. And the vast majority of currently open border is on those properties.

I would say that rule and act applies for the entire border.
just as i have my house but the first like 4 feet from the road is the easement.

I own it but the city can do whatever they want there without my permission.
 

haymarket

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Thanks.

This one may be problematical for those landowners who might object to the government taking their land.

And thank of all the political good will Trump will amass using eminent domain to take those ranchers land. This should be better than Mike Pence at an hedonists convention.
 

Skeptic Bob

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I would say that rule and act applies for the entire border.
just as i have my house but the first like 4 feet from the road is the easement.

I own it but the city can do whatever they want there without my permission.

Because there are state and local laws that allow that. In this case we are talking about the federal government and the federal government exempted Texas.

Like I said before, maybe there is a way for the State of Texas to take that land and the turn it over to the federal government. But unless Congress passes a law, Trump can’t take that land unilaterally, at least not under the 60 ft easement rule.
 

Grokmaster

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I have mentioned this in some threads but decided it needed its own thread. Trump keeps saying he can declare a national emergency to get the funds needed to build the wall. I do believe he probably has the authority to redirect funds to build the wall and to order the Army Corps of Engineers to oversee the construction.

However, it does not appear that the President has the authority to seize private property, even during a national emergency, without the backing of Congressional legislation.

During the Korean War the steel mills went on strike. This was obviously a detriment to the war effort and President Taft attempted to seize the mills. SCOTUS, however, ruled that the President has no such authority to seize private property without the backing of Congressional legislation.

https://en.m.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer

I’m no lawyer, but the way I read that tells me that even if Trump comes up with the money and manpower, he won’t be able to get the land. The only possible workaround to that might be if the State of Texas has the power to take the land. But what are the odds that the State of Texas would go against that many well-to-do landowners?

Am I missing anything? Are there some other loopholes to this that I am overlooking?

Wrong.


What you are "missing" is the National Emergencies law of 1976, amended in 1985.


Yes, The President Can Declare A 'National Emergency' To Build A Wall





https://en.wikipedia.org/wiki/National_Emergencies_Act




Thanks for playing.
 
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Helix

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i wondered about the land seizure part, because a lot of rich ranchers probably don't want an ego wall on their property. they'll probably spend more in court than they'll spend building the monstrosity. either way, if he gets even part of it done by declaring a national emergency, the next president could do the same thing and just have it torn down and give the ranchers back their land. that would be funny.
 
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