That Pesky Thing Called Reality

There are plenty of reasons to oppose Trump’s “big beautiful wall,” and I’ve listed a number of them in previous posts. Most fall in the category of “if the wall were built, this is why it wouldn’t deter unauthorized immigration or drug trafficking.”

Less attention has been paid to the reasons such a wall won’t ever be built.   

As Elie Mystal recently wrote at Above the Law,

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

The reason for Mystal’s confidence can be found in the Fifth Amendment, which–among other things– prohibits government from taking private property without just compensation. That “takings clause” is why states have eminent domain laws.

Opposition to the use of eminent domain for any but the most obviously “public” purposes   has been a staple of Republican ideology, so I’ve been surprised that so few supposed conservatives have raised the issue.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

 We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

The government doesn’t own most of the land on which the wall would be built–it would have to “take” land from those who own it, and people who stand to lose their property to allow construction of the wall will almost certainly go to court. Talking Points Memo recently quoted a Texan whose property is at risk:

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

I couldn’t agree more with Mystal’s concluding paragraph.

I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.


  1. When has reality or facts ever entered into the picture with Trump?

    Donald exists in his make-believe world where daddy is always there to bail him out of trouble. When kids never suffer negative consequences for their bad decisions/actions, they don’t learn anything. They don’t grow up or mature ala Trump.

    Let’s be serious; this guy appears to have sought assistance from the Russian Mob because his daddy isn’t around anymore to bail him out.

    Trump isn’t very smart, has no ethics and rarely suffers negative consequences (yet). This is a horrible combination for a POTUS. It’s an awful set of characteristics for anybody. Most people like Trump die early or end up in prison.

    His racist wall has now mushroomed into a “Humanitarian Crisis on the Border.” LOL

    Are we sure Roger Ailes is no longer at Fox News? Is groping hands Roger now on Trump’s staff?

    The wall is nothing more than a political stunt. Sadly, real people are getting hurt while Washington plays politics.

  2. Working under Steve Goldsmith as Mayor of Indianapolis was a forerunner and a forewarning of the misuse of eminent domain use. His “wall” was the extension of Mayor Bill Hudnut’s beautiful Canal Walk which cleaned up the old canal running through downtown; filled with trash, tires, at times entire old abandoned cars and the occasional dead body. As records secretary for the Metropolitan Development Commission I watched Goldsmith’s “offered” purchase price of properties forced on people who did not want to leave. The money “offered” didn’t meet the real estate prices to relocate of the times due to the age of home and businesses on targeted properties. I put the term “offered” in quotation marks because the property owners had no legal standing to refuse to sell.

    Trump is doing the same thing today on a much larger scale but for the same bogus reasoning, his egotistical need to leave a “legacy” in his name, that Goldsmith used in the 1990’s. Early on; there were wealthy Republican Texans who complained about the construction of Trump’s wall blocking them from access to areas of their private properties and cutting herds of livestock off from their natural water source. What happened to them…payoffs? What effect will (or does) Trump’s wall have on our environment and the landscape and wildlife survival in that area?

    “It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.”

    Why aren’t the environmentalist screaming? What effect has this entire Trump fiasco had on our southern border businesses on both sides of the border? What effect is it having on families becoming estranged due to our fool in charge blocking their border crossings? This wall situation has become an unidentified area of our loss of civil rights under SCOTUS rule. It seems to have touched on all areas of “That Pesky Thing Called Reality” for all of us in this country; from border to border to border to border. When and where does it end? Can it end?

  3. While Trump has everyone’s attention focused on the Wall, his minions are busy ripping the government apart. It isn’t the Wall that Trump and the Republicans want; it is the end to government as we have known it.
    This is TREASON!

  4. Trump has dug himself into a very deep hole and the republicans that have chosen to support him no matter how much damage he does to the country don’t see a way out for him or for them if they do the right thing and acknowledge that the Dems are fighting for the best option.

    Giving in is not in trump’s genes and he continues to gain strength from his evangelical power hungry gangsters who counsel him to hold tight. The mystery to me is why a majority of republicans in DC remain silent. Is the rabid far right base really that powerful? Has the far right media managed to infect the brains of their followers so fully that if their chosen ones in DC chose to do what is right for the country that it would mean they would absolutely be fired in the next election?

  5. It seems we are about to reach conservative Nirvana. Most of government is shut down and there is no end in sight. Wasn’t the goal, “Make government so small it could be drowned in a bathtub?” We now have a President who just doesn’t care if government ever re-opens.

    The question to ask is, “Who gets hurt by this?” Not the Koch brothers, nor any of the members of their little billionaire’s club; not 45, nor any members of Mar-a-Lago; not Mitch McConnell, nor the members of his caucus. Native Americans get hurt, parents who have used vacation time to take their kids to Yellowstone, travelers who must go through long security lines to board planes, people who think their food supply is safe, people whose livelihoods rely on the purchasing power of government employees and contractors. I could go on, but my point is that we have always cared most about those things that cause our own ox to be gored.

    We need to make sure that McConnell and the members of his caucus understand that their ox will indeed be gored come November 2020. We can only hope we all survive a shutdown that may last until November 2020.

  6. Sheila; for some reason, these comments are not showing on you Recent Comment list except when I click on “Leave a comment” directly under your blog. When I access today’s blog, they are gone from the comment list, only yesterday’s comments are listed.

  7. This is more than just an immigration problem like what is happening in Europe. We seem to forget that we took the lands in question by a military force less than 100 years before I was born.

    It has a lot of similarity to the Israeli-Palestinian situation of land grabbing by a more powerful entity.

  8. one drugs dont have legs,people do, two, illegals are a backbone of labor here. when they work,and sacrifice thier lives to make a better life for themselves,as we, suck down our silverspoon lives,they live in fear. Ive worked with them when i lived in Calif back in the 70s, they tought me something,respect,and a work ethic thats natural in their lives,they could work me under a table anyday…they could teach a thing or two about life,and what it takes to live in a bigoted land. that wall is a farce, anyone can climb a wall. but,as i see a former CEO of boeing is now occupying the white house, guess who sells those detection devices for that wall,, how convienant.. as far as drug smuggling, try this, when the shipping and tourist industry are the main source of drugs entering this country,as its been for decades, they dont like thier customers frisked,or containers opened,or bags ruffled,its bad for buisness. i spent a few hours at port canaveral in fla, its a tax port,mainly high end stuff,i witnessed a container that had lets say pillow size bags,of coke… i asked the plain clothes guy, how accurate are you on the containers?he said,95% , and how many pass through with drugs? he said 95%. so dont bullshit the people who do this work. the issue is with money.

  9. Theresa,

    “This is treason!”

    Agreed. If we wait too much longer to take EFFECTIVE action it won’t be. Since there won’t be any way to enforce protection of the Constitution. The Supreme Court can’t be trusted.

    It’s coming in two stages. Once the TRANSFORMATION of the society is completed, the TRANSITION to an authoritarian state will be a FAIT ACCOMPLI.

  10. The wall was undoubtedly birthed in the tortured sewer Stephen Miller calls a brain. It feeds right into Trump’s inherent racism and the fear white males have of suddenly not being privileged anymore.

    I can’t imagine ranchers along the border standing still for a minute when the surveyors start putting stakes in the ground. Then, this is all a dream anyway. It would take ten years and ten thousand people to build the $5.7 billion section of the wall. It’s never going to happen under Republicanism or anyone else.

    If the best-case scenario (and boy do we deserve one for a change) comes to pass, Trump and his fellow criminals and treasonous bastards will be wearing orange jumpsuits to go with their complexions.

  11. We keep analyzing the Trump administration from a democracy perspective. From a neo-fascist perspective, he’s doing a terrific job. That’s why he has continual support from the Republican Party. Wake-up, they don’t give a shit for democracy. It takes much more than democracy to stand in the way of a powerful neo-fascist movement.

    Professor Albert Einstein made that observation many, many years ago.

  12. Great comments across the blog today.

    I do not think anyone will ever discover any incriminating E-Mails between President Agent Orange or Pastor Pence and Vladimir Putin. Putin is far too smart for that. What I think with out much effort on the Russians and probably the Chinese behalves was Candidate Agent Orange and later President Agent Orange was a greedy scam artist. I think we will find out President Agent Orange has a long history of tax evasion and money laundering. The attempts by the Trumpet’s family and inner circle of scam artists to be in the big leagues, must have been viewed as laughably incompetent by the Russians and Chinese.

    President Agent Orange, Pastor Pence and the Trump family are not master spies but, they are “Useful Dupes”.

    What I find interesting but, I must confess not surprising, is that President Agent Orange and Pastor Pence cannot show us their plans for The Wall.

    Will The Wall be concrete or steel or both? Maybe a cyclone fence, barbed wire or a picket fence Tom Sawyer and Huck Finn can paint. Where will it be built? How many people will be needed to guard The Wall and maintain it?? As far as design is concerned, maybe some of those East Germans who designed their Wall are still alive and can be hired. Innocent Federal Workers and Federal Contractors are being held hostage by President Agent Orange, Pastor Pence and McConnell for something they have no say on. Collective Cruel Punishment.

    So far the Reactionary-Right Wing-Evangelicals in the House and Senate have taken a duck and cover approach. We the people must try to make sure these Reactionary Elected Republicans know we blame them and President Agent Orange and Pastor Pence for this cruel, heartless shut down. I plan on writing letters to my Federal Representative Susan Brooks and the two Senators here in Indiana, letting them know the Republicans own this chaos.

    Hopefully, if the Republicans receive a deluge of letters and phone calls holding them accountable, they may decide in their own selfish interests (we know selfishness is a common trait of Republicans) to break ranks with President Agent Orange and Pastor Pence.

  13. The real problem is that we don’t have the present capacity to STAND OUR GROUND against the TRUMP/REPUBLICAN ONSLAUGHT AGAINST DEMOCRACY. As I mentioned a few days ago it’s a human frailty, which we don’t see for the most part in the animal kingdom.

    My parakeet friend, Princess Pica, who recently passed away, thankfully, didn’t have that problem.

  14. Can we expect a narcissist like Trump to have empathy for those effected by the shutdown? Isn’t this what the repugnant stated gameplan anyway, eviscerating the social safety net? The government serving the very rich is plugging right along. Military contractors are getting paid, the feds still lending money to banks. Why isn’t labor calling for general strikes? If we can really shut this f**ker down to the extent those with power start getting some harm we might see some movement from the right. I also don’t understand the passive acceptance of this sea change in government. I’ve been reading with interest the civil disobedience the public engaged in to get social democracy in Sweden an Norway, and think we need to apply those principles.

  15. Sheila: “…the Fifth Amendment, which–among other things– prohibits government from taking private property WITHOUT JUST COMPENSATION.”

    So, we are to conclude that opposition to the wall can relax because building Trump’s stupid wall will not happen…as if the statement above read:

    …the Fifth Amendment, which–among other things– prohibits government from taking private property (notably absent is the just compensation phrase).

    I don’t think the opposition can count on the Fifth Amendment to stop the wall. I doubt if the opposition to the wall would even think it wise to use the Fifth Amendment card.


    Well, what if instead of a wall along the Texas-Mexican border scientific geniuses insisted that building some sort of new-fangled collider there would end global warming and reduce acquired cancer by 70%? In that case, I am sure the current opposition to the wall would flip and support the collider project, and would be quite disappointed if the Fifth Amendment had set precedent against any such project requiring government acquisition of private property. Also, those who now favor the wall would then flip and oppose the collider project, easily and quickly playing the Fifth Amendment card.

    Pro or con over building any project along the border is fundamentally about its purpose…and the politics that project’s purpose grows from or grows into.

    It does not help the opposition’s cause to be jumping for every ball fake on the Internet.

  16. JoAnn @6:58 AM:
    As someone who now lives roughly 70 miles from the U.S.- Mexican boarder here in Southern Arizona, I can tell you that there are land owners all along the boarder, here in Arizona, New Mexico, Texas, and California that are vowing to fight Trump’s attempt to take their land, and in some cases livelihoods away by building a totally useless and unneeded wall. That’s not to mention the Tohono O’odham Indians, whose reservation here in Arizona not only goes right up to the boarder line, but whose tribal members have historically lived on both sides of the boarder and for centuries have crossed back and forth daily at will. The Tohono O’odham tribal leaders have vowed to fight every way possible the building of a wall on their tribal lands.

    That’s also not to speak of the vast sections of the boarder where it would be virtually physically impossible to build a “big, beautiful wall” due to the extreme mountainous topography, or down the middle of the scenic Rio Grande River in Big Bend National Park for example.

    There are also many environmentalists, as well as many every day citizens living here, protesting daily about the ecological damage Trump’s wall will do (not to mention what the existing segments of the wall and the Boarder Patrols daily intrusions on the land and building roads along the boarder has already done).

    So why doesn’t anyone hear about them? The reason is the major corporate news media, for the most part, doesn’t report it. They’d rather focus on Trump, and in an effort to be “fair” to the Republicans, report his idiotic, childish rantings as if there could be some truth or rationality to them.

  17. Gail,

    “If we can really shut this f**ker down to the extent those with power start getting some harm we might see some movement from the right.”

    Sweden and Norway are democracies and we are not. By concentrating on those countries it will allow you to understand what is missing here. I’ve been doing it for about five years. The best way to start is by tweeting

    What we have to do is PROJECT the harm before it is going to happen. It will probably be too late if we have to wait for the harm to appear before their eyes.

    But how can do that and STAND OUR GROUND if we lack what is called WARNING INTELLIGENCE? It is as simple as that. So we continue to use inadequate sources of intelligence which allow us to escape the hard realities of facing up to the problem.

    The TRUTH is the last thing we want to use. Who wants to get hurt?

  18. As a postscript to my last rant:

    I’ve recently visited both sides of “the wall” in Nogales, AZ and Nogales, Sonora Mexico. I’ve also viewed “the wall” coming down from the mountains in Mexico heading north towards the boarder crossing at the cities of Aqua Prieta, Sonora Mexico and Douglas, Arizona (which once were essentially one city straddling the boarder whose citizens crossed the boarder freely) as it stretches for mile after mile along the boarder. It is also plainly visible for mile after mile along Interstate 8 through Arizona and California.

    “The wall” is truly an abomination and a visual scar upon the Earth. Sure that it’s even worse to see now that Trump has wasted our taxpayer money and the time and efforts of our military by having them string razor wire along the top of it. Indeed, “the wall” sends a message, but it is a truly ugly one, both visually and for what the United States of America supposedly stands for.

  19. David F; thank you for you extremely informative comments. Is there any way you can get those you talked about to post on Facebook, Twitter or here on the blog which travels far and wide by our family of commenters? In the 1970’s in Indianapolis, we had only the Hispano-American Multi-Service Center downtown providing immigrants with aid; basically all humanitarian services including Immigration and Naturalization Services and ESL classes. Our clients were from all around the world, not only Hispanics; the staff did amazing work…then Reagan was elected.

    Thanks again for your information and I was remembering my one trip to Nogales, Mexico, years ago which reminded me of the businesses on both sides of the border. My husband and I camped on Lake Patagonia in 117 degree temps after our day across the border.

  20. In Trump’s tiny mind there is no difference between building a wall and a Trump Tower. There’s also no difference between the Supeme Court and the local planning board. Both are merely temporary obstacles to be run over by lawyers.

    He’s now though backed himself into a corner which Fred didn’t warn him about. What if all of the lawyers in the world aren’t enough?

    He has not given any thought at all to what if Nancy and Chuck just say no? What if the American people agree? What if the consequences of holding your breath until you turn blue are that nobody cares? What if people aren’t for sale?

    This is an unprecedented event in his baby life. Everyone who has to agree is saying no.

    What now Donald?

  21. Taking property from resistant landowners will take years in legal fights. That’s just one reason why the wall is NOT an emergency. Since illegal immigration has been at historic lows for the last 10 years, the wall is NOT an emergency. Donald Trump’s refusal to acknowledge facts IS an emergency, as is Mitch McConnell’s refusal to bring an end to this insanity which he could easily do.

    McConnell can put a bill on the president’s desk to end the shutdown and continue the discussions about a wall and/or other border security. McConnell and the GOP Senate have the votes to override a veto – they passed an earlier bill unanimously to avoid the shutdown and enhance border security. The President supported that earlier bill and then pulled the rug from under the Republican Senate. Senate Republicans should tell the President the gamesmanship is ending right now and put the legislation on the presidential desk to end the shutdown.

  22. I read that there’s an historic village that stands in the way of the wall in a remote area of Texas, and it has an 18th-Century chapel that has been preserved. I also read that locals are prepared to fight all the way to the SCOTUS over that parcel.

  23. Good on ya, Teresa Bowers and Peggy Hannon! And Marv, you’re trying so hard to save us from ourselves! Good luck with that. I really miss you when you’re not here.

  24. I knew that Sheila was going to cite Kelo when I saw her 5th Amendment taking language. I agree with her that it is not the worst decision the Supreme Court has ever made given Dred Scott, Plessy and Citizens United, but I have detested its rationale and have it ranked in the upper ten of the worst. I can see the taking of private property for a (genuine) public use but when one of the parties is entrusted with defining public use it becomes a bridge too far for me.

    If, for instance, a governmental unit can take a citizen’s house via condemnation because a to be built motel yields more tax revenue than the property taxes the citizen pays (as opposed to a highway, sewer line etc.), then the whole common law concept of owning private property goes to pot since the new owners are private owners as well. Kelo allows the government to run interference in condemning private property for a private use (though for more tax revenue) but was, I think, wrongly decided.

  25. Jack Smith, as always you have hit (all ) the nails on the head. It’s all about money
    And power. Also, Jack, I have spent lots of time via ESL classes, and with extended family members, with Hispanics and many of them put us to shame…not only in their work ethic but also in their family values. Those red faced cheering sheep who follow our Hitler in chief are the ugly side of this country. Always been there but now are an energized destructive machine for this administration.
    Congress is so separated from the realities of the people who put them in office because they have taken so many bribes and their financial worth rarely can be explained or justified..just like Trump. Entitled and powerful people in charge live in their own private insulated bubbles and I fear the only way to get through to them is via revolt.

  26. I had the…pleasure?… of working in eminent domain for a few years. I can say (honestly!) that in most cases the person whose property is being taken (boy, do I hate that term – it is not one that wins friends or eases buying) ends up fairly compensated and, if not happy, at least not angry by the end of the process. In my case, I was never buying for things that seemed wildly capricious – I was buying for actual public use. When people use eminent domain to give property to private developers (malls and businesses sometimes get away with it thanks to weak kneed folks up the chain) it just annoys the bejesus out of me. This wall thing is 10x worse as it’s a pure trifecta of: useless, expensive, racist.

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