By Zack Crandell
On his first day in office, January 20, 2021, President Joe Biden signed a proclamation exploring options to terminate the national emergency and temporarily cease construction of the wall being built on the U.S.-Mexico border, while awaiting a review of the legality of the wall on multiple grounds.[1] This prompted the Supreme Court, upon request from the Department of Justice, to suspend oral arguments in a case brought by the ACLU and the Sierra Club to stop the building of the wall on the grounds its funding is illegal.[2] Per the proclamation, the Departments of Defense and Homeland Security in conjunction with the Office of Management and Budget will conduct the review, but what happens to the contracts and eminent domain cases in the meantime?[3] What happens if the diversion of funds is found to be legal by the review or illegal by the courts?
In order to construct the border wall the Trump administration filed over 200 eminent domain cases, with 60 of those cases being filed between November 26th and January 20th.[4] This necessary land grab slowed the progress of the wall, primarily in South Texas, with some cases taking almost twice their usual time.[5] While the Biden administration has pledged to drop pending and future eminent domain cases there is little that can be done for land owners who have already lost property to the project, some of which have already had portions of the wall built in their former backyards.[6]
Construction contracts with the government will typically contain clauses allowing for complete or partial termination, but the presidential proclamation has requested advice on whether the funds and contracts can be redirected to other purposes.[7] Groups are calling for the money the be redirected to efforts to dismantle the newly built portions of the wall, especially in areas where it was built on seized land or in areas with sensitive ecosystems.[8] Hopefully the review will be able to determine what is the best way forwards. This may be legally tricky, though, requiring renegotiation with parties that may have already purchased materials or made downstream promises to contractors and suppliers, but if the act was illegal in the first place, shouldn’t the funds be returned to their original purpose or will they remain in their current purse?
While a finding of illegality regarding the diversion of funds would be a win against the unitary executive, it would be hard not to feel another brick of injustice had been laid in this wall which took from private citizens, threatened endangered species, and funneled public money into the project.[9] As of February 11, 2021 President Biden formally ended the national emergency instigating this storm of concerns and hopefully there is a plan to limit or hold accountable executive power dipping its hands into the people’s pockets for ill guided and ill meaning purposes.
[1] Elliot Spagat, Biden Halts Border Wall Building After Trump’s Final Surge, AP News, Jan. 22, 2021, https://apnews.com/article/biden-inauguration-joe-biden-donald-trump-oceans-coronavirus-pandemic-bc664278ac096e6ff878116034ec06bb.
[2] Pete Williams, Supreme Court Cancels Arguments on Trump’s Border Wall, ‘Remain in Mexico’ Policy, NBC News, Feb. 3, 2021, 9:40 AM, https://www.nbcnews.com/politics/supreme-court/supreme-court-cancels-arguments-trump-s-border-wall-remain-mexico-n1256593.
[3] Nick Miroff & Arelis R. Hernández, Biden Orders a ‘Pause’ on Border Wall Construction, Bringing Crews to Halt, Wash. Post, Jan. 20, 2021, 10:09 PM, https://www.washingtonpost.com/national/biden-border-wall-executive-order/2021/01/20/5f472456-5b32-11eb-aaad-93988621dd28_story.html.
[4] Elizabeth Findell & Michelle Hackman, As Biden Decides What To Do With Trump’s Border Wall, Landowners Are in Limbo: President Biden Promised To Halt Construction of the Border Wall: But Landowners Fighting Eminent Domain Don’t Know the Status of Their Land, Wall St. J., Feb. 7, 2021, 8:00 AM, https://www.wsj.com/articles/as-biden-decides-what-to-do-with-trumps-border-wall-landowners-are-in-limbo-11612702800.
[5] John Burnett, Acquiring Private Land Is Slowing Trump’s Border Wall, NPR, Dec. 20, 2019, 5:09 AM, https://www.npr.org/2019/12/20/789725311/acquiring-private-land-is-slowing-trumps-border-wall.
[6] Miroff, supra note 3.
[7] Spagat, supra note 1.
[8] Tanvi Misra, The Fight for the Future of the Borderlands: Under a Biden Administration, What Will Become of Trump’s Partially Constructed Border Wall — and the Communities and Ecosystems that Live Around It?, Bloomberg, Jan. 21, 2021, 11:16 AM, https://www.bloomberg.com/news/features/2021-01-21/what-will-become-of-donald-trump-s-border-wall.
[9] Id.