Legal experts: Emergency declaration may not be quickest way to build wall

In declaring a national emergency to build a border wall last month, President Trump described the move as the fastest path to construction â€" and Texas is one of the administration's top priorities for the next round of barrier building.

But as the U.S. Senate prepares to vote on the declaration â€" and Trump readies his veto pen â€" legal experts say that even if the president gets his way, a variety of legal issues could delay wall construction for years and even derail it entirely. Even under an emergency declaration, they say, a president doesn't have free rein to take land for a border wall â€" partly because, according to several experts, the declaration makes the legal questions surrounding land seizures even murkier.

Under normal circumstances, the federal government has extraordinary eminent domain powers â€" if it wants to seize property, landowners are virtually powerless to stop it. But several attorneys and academics who specialize in eminent domain law said that’s only if Congress specifically authorizes the condemnation, or the project that requires it.

“By trying to run around Congress’ authority [Trump is] inadvertently jeopardizing his whole project,” said Texas-based eminent domain attorney Charles McFarland, who represented a border landowner facing condemnation for past wall construction.

The outcome of the political struggle in Washington â€" and the many lawsuits challenging the declaration â€" is particularly relevant for Texas border landowners.

The administration has declared the Rio Grande Valley, which has recently seen the highest number of unauthorized border crossings, as a priority for wall construction â€" some of the first segments of Trump’s wall are already under construction there, paid for by funds Congress authorized last year. And unlike other border states, where the federal government already owns much of the border land, the vast majority of border property in Texas is privately owned, meaning the federal government will have to seize it before it can build more barriers there.

The U.S. House has already voted to nullify the emergency declaration and its fate in the Senate is uncertain â€" though even if the upper chamber also votes to nullify it, Trump is widely expected to issue his first-ever veto.

But Ilya Somin, a law professor at George Mason University who specializes in eminent domain law, said that will only be the first of many hurdles Trump must clear.

For one, he said it’s uncertain if the statutes Trump cited in his emergency declaration actually allow him to spend money on wall construction.

Somin said that Section 2808 â€" a federal law Trump invoked in his declaration that allows for the diversion of military funds for construction in the event of a war or emergency â€" “specifically indicates that you can only spend the money in the case of a national emergency where it’s necessary to use the armed forces.

“Here it’s clearly not necessary,” he said, but acknowledged that the Trump administration may cite its recent deployment of the military to the border as evidence that the armed forces are required.

Still, even if Trump is authorized to spend money for wall construction, Somin said he doesn't believe Section 2808 authorizes the use of eminent domain because previous U.S. Supreme Court rulings say that power has to be authorized by Congress.

"So even if he can spend money, it doesn’t follow that he can use that money to condemn property,” Somin said, adding that the administration would then be limited to building the wall on land the federal government already owns.

Nick Laurent, an Austin-based eminent domain attorney representing several Texas border landowners facing condemnation for the wall construction that's already been authorized for the Rio Grande Valley, agreed that it's unclear whether Trump can legally divert money from other parts of government to condemn land for a wall. Laurent said a 1952 ruling by the U.S. Supreme Court that barred President Harry Truman from seizing private property under an emergency declaration “will certainly come up as an issue.”

“It’s just another question in the big picture,” he said. “Even if money can be used for construction, can the government seize private land under the emergency declaration?”

Government lawyers may claim the executive branch already has congressional authorization to seize private land on the border, as they did in a recent condemnation case, said McFarland, who is advising the non-profit Texas Civil Rights Project in current condemnation lawsuits involving the wall. In the eminent domain lawsuit filed last year against a Rio Grande Valley landowner, U.S. Department of Justice attorneys cited a set of laws, including the Consolidated Appropriations Act of 2008, which sets no maximum mileage limits for barriers along the southwest border. In future condemnation cases, the administration may rely on the same set of laws to argue that it already has congressional authorization, according to McFarland.

While some eminent domain attorneys may argue the 2008 law isn’t a blank check to seize land for all kinds of border barriers, McFarland said congressional authority doesn’t have to be explicit â€" it can just be implied â€" so there’s a chance that the court will still side with the federal government.

“There’s enough smoke where a judge could say, ‘I see implied authority here,’ ” McFarland said.

In addition to proving their eminent domain authority, the federal government must also prove that the wall has a public benefit, said Dwight Merriam, a Connecticut-based eminent domain attorney. And he said declaring a national emergency doesn’t waive that requirement, which is a longstanding tenet of eminent domain law.

Demonstrating that there are alternatives that would be better and cheaper â€" like a “digital wall,” more Border Patrol agents or real-time drone surveillance â€" would pose a solid legal argument against it, he said.

Trying to build a wall using an emergency declaration also eliminates one of the government's most potent tools for seizing land, McFarland said.

More than a decade ago under the George W. Bush administration, the federal government seized private land along the U.S.-Mexico border and built roughly 700 miles of fencing using what's known as "quick takes," a reference to the Declaration of Taking Act, which Congress passed during the Great Depression to help stimulate the economy. The act allows the federal government to swiftly seize land to build projects, then compensate landowners later.

But quick takes also require specific congressional authorization, McFarland said.

The border fence and levee passes through the Lower Rio Grande Valley National Wildlife Refuge in Hidalgo, Texas on Feb. 7, 2017.

Callie Richmond for The Texas Tribune

Without Congress' authorization to do quick takes, McFarland said, land disputes would have to be resolved in court before the federal government could start wall construction. That process can take years and McFarland said a long enough delay could ultimately kill Trump’s plans for a longer border wall â€" especially if Trump doesn't win re-election.

“The next administration is going to shut this down,” McFarland said. “2020 is a drop-dead date for this project. If you can dribble out the clock, you win.”

Roy Brandys, another Austin-based eminent domain attorney who works with Laurent, stressed that landowners who decide to fight condemnation must immediately site all the legal objections they plan to use in their challenge to the government's "right to take" or they will more than likely lose the chance to do it later. After the government first moves to condemn property, owners have 20 days to respond.

“You have to allege all of your defenses â€" all of your counter claims, whatever it is you’re contesting â€" in the very first pleading you file,” he said. “So if I’m the government, I could file [a lawsuit to condemn property] and if the landowner didn’t know to bring up the issue of right to take in that first pleading, they could proceed.”

Politically speaking, Somin said Trump could come out on top even if he ends up getting blocked in the courts or delayed by a lengthy condemnation process.

“It might be that he’s biting himself in the ass in that the emergency declaration is unpopular,” Somin said. But “even if ultimately what happens is the courts stop it or it takes many months or years to build much of anything, he can at least tell his base he’s pushing on it. Whether that’s worth the political cost for him, I think the answer to that at this point is unclear.”

Read related Tribune coverage:

"Legal experts: Emergency declaration may not be quickest way to build wall" was first published at by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans â€" and engages with them â€" about public policy, politics, government and statewide issues.

How Trump gets to $8 billion to build southern border wall

WASHINGTON — President Donald Trump says he will spend about $8 billion to build a wall on the U.S.-Mexico border. It's a far greater sum than the roughly $1.4 billion Congress set aside for that purpose in legislation Trump is expected to sign to prevent another partial government shutdown.

Trump has declared a national emergency on the southern border and is using his executive authority to go around Congress and siphon money from other government accounts.

Here's a breakdown of the $8 billion, according to acting White House chief of staff Mick Mulvaney:

—$1.375 billion included in the government funding bill awaiting Trump's signature.

—$3.6 billion from military construction funds.

—$2.5 billion from Defense Department counterdrug activities.

—$600 million from the Treasury Department's asset forfeiture fund.

Company offers to build 234 miles of border wall for $1.4 billion

A U.S. company is offering to build 234 miles of President Trump's border wall for just $1.4 billion, a fraction of the $8 billion the Trump administration is hoping to use for that project.

Fisher Sand and Gravel Company's President and CEO Tommy Fisher said the government is overpaying and that for $4.31 billion, he can build the wall and incorporate paved roads and border technology plus warranty.

"Our whole point is to break through the government bureaucracy," Fisher told the Washington Examiner. "If they do the small procurements as they are now … that's not going to cut it."

Of the $8 billion Trump is hoping to spend, he already has $1.375 billion of that amount from Congress, which can only be used to build fencing in the Rio Grande Valley. Trump is seeking to repurpose another $3.1 billion in defense funding for more border wall and $3.6 billion more through his emergency declaration that Congress and the courts will challenge.

Fisher said that the roughly $1.4 billion is enough to build 20 miles of levee wall in the Rio Grande Valley, plus another 214 miles. That pot of money, however, can only be used in the Rio Grande Valley, according to the bill Congress passed approving those funds and was only expected to be used for about 55 miles of steel slat fencing.

The Army Corps of Engineers is not ready to start looking at how to spend the $8 billion that Trump is hoping to spend on the wall, a representative told the Washington Examiner last week. The corps is considering how to spend money Congress gave DHS last fiscal year and has not requested bids from the private sector because it's still in the procurement process.

Replacement and new wall projects have struggled to get underway in Trump's first two years in office. Just 35 miles of wall have gone up in that time. The Army Corps of Engineers has procured around 75 miles but has not awarded $900 million for the project of the $1.35 billion that was in the 2018 omnibus.

DHS officials and several lawmakers are expected to visit the site of his border wall construction site in Arizona next week.

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EDITORIAL: Private Effort To Build A Wall Might Offer Solution To Border Debate

How to Make a Photo into A Classic Wall Mural

When it comes to choosing a mural to put up, everybody has their unique preference. The good news is, whatever you want your mural design to be, you can always find it. Whatever theme or special moment that you want to use as a design for your mural, it is important to know that if you have it on a photograph; you can have it as the mural. This way, your home or office will always remain to be a special place for you.

Browse your image

You have to make sure that you select a picture that captures the best expression of a special moment. Whether it was from a vacation or a graduation ceremony and the joy on your faces can tell it all, that special moment should be perfect to give your wallpaper life. If you want a more creative idea to decorate your study room or your kids' bedroom, you can decide to organize for a professional photo-shoot to communicate whatever feeling you want you're mural to have.

In the case of your study room, for example, you will require wallpaper that is calm and relaxed to create an atmosphere conducive for your work and a picture of that big tree on your yard can still work correctly.

Chose a size

This will entirely rely on the size of the wall that you want to install your mural. You should, however, know that mural designs sizes range from small, large to custom sizes. It all depends on which room you want to install your wallpaper and the kind of design you want to portray. Additionally, you should know that the size of your mural plays a significant role in determining the level of effectiveness of your wallpaper. The bigger the wallpaper, the more attractive and intriguing it is and vice versa.

Select a material

We have four different types of wallpaper materials that you can work with, and each is special in its way.

1.     A standard fabric which comes with a self-adhesive back for easy installation, removal, and reinstallation. It is also PVC free.

2.    Premium canvas is a more artistic canvas not forgetting its compact nature. Also comes with an adhesive back hence easy application. Has more similarities to the standard fabric but more suitable for commercial murals. Class A fire rating and category VI commercial.

3.    A paper which comes separately with different wallpaper glue. Class A fire rating and has the traditional paper matte finish.

4.    Vinyl also requires paste for installation and has a Class A Fire rating.

If you are having a problem choosing the right material to use for your mural, then feel free to reach out.

Options

In addition to providing you with cool wallpapers made from your unique photos, we understand that it may not be enough. For example, installing a mural in a high traffic area like your restaurant requires a unique protective coat to keep your decoration looking new for longer. Our special liquid laminate is the best for the job and will protect your unique mural from scratches.

We are also able to create special effects for your mural image designs, for example, try using a mirror image for your mural, and we will work the magic to leave you with a unique looking wall.

For more creative effects that will redesign your special photo, give it a black and white color scheme that will leave your living room or office to have a striking visual statement.

If the size of the mural you ordered does not fit the supposed wall, then have no worries for we are glad to extend the mural for free.

Need ideas

Not everyone finds it easy to come up with mural designs to install. Some people do have ideas but how to make them a reality is a great challenge. If in any case, you are going through such a problem then below are a few ideas to make your work easier.

If you want to decorate your library, study room or that special room where you need a calm and soothing effect, then you should try the serene forest scene. It will provide the soothing effect.

Running a sports bar should be more fun with an exciting atmosphere, and that is why you should go for sports themed murals for decor. You can find more ideas and inspirations by visiting www.muraledesign.com/sports-wall-murals/.

If you are expecting a new member in the family, then it is only fair if they find their room ready with lively mural designs. For a baby girl, fairy tales should be a good choice for wallpaper design. A male child could use superheroes on the wall to give that feeling of boldness.

Special occasions could also do with a custom mural. Valentine's Day is an excellent example of a day that you can lighten things up with custom wallpaper.

The artistic expressions represented on murals allow them to create a special feeling in the atmosphere. That is why murals are considered one of the unique decoration ideas thanks to the fact that they are fully customizable.

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How to Topple that Wall & Score Victory Every Time

You have an opportunity – every moment, every day – to bring your best self forward, even when you hit a wall. Which you will. (Secret below.)

There's a rainbow stretching from end to end as I look out from my perch where I'm writing this. It's been brilliant in our sky for almost 30 minutes already. The rainbow serves as an apt symbol for what I'm about to tell you.

Image credit: Stencil

A rainbow is forged in the midst of inclement conditions. You never see an actual rainbow on a cloudless day, nor at night. You need that particular combination of light and dark, beauty and pain. The rubbing of opposites — sun and rain — producing this miraculous grand delight.

Keeping this imagery in mind, I want to let you in on a secret.

You, too, can produce rainbows in your life. Every day.

You can ignite something as miraculous as a rainbow — forged through a sense of purpose, commitment, determination and grit, and a pinch of grace. You just need to know where to look. And you need to change your perspective — even overhaul your mind — so every day you can experience the miracles opening up to you.

Let me explain.

Scaling — even toppling — the wall

There is a wall you and I face every single day. Steven Pressfield coins it 'Resistance' in his simple but profound book, The War of Art. In a nutshell, Resistance is what we encounter every single day, in ways large and small, when we set out to do something awesome, whatever that may be.

Get up early for that workout? Resistance wants to push you back down, under the covers. Maybe tomorrow, you reason.

Make that phone call to begin healing a relationship? Naw, it can wait.

Image credit: Pixabay

In The War of Art, Pressfield personifies Resistance and talks of it mostly in the context of creative endeavors. When you sit down and start to write, is that blank page or screen staring you in the face mocking you, telling you you're not good enough? You don't have anything worthwhile to say, so why waste the time?

When you stand in front of that canvas, can't you hear Resistance sneer at you, deriding any ounce of ambition you have?

Of course, this may not happen every time. Resistance is cunning. It wouldn't make itself so easy to predict. Resistance changes up its tactics, adjusting itself to where you are in any given endeavor, whether you're about to start, traversing through the "mucky middle," or nearing the end. Indeed, Resistance lurks everywhere, eager to distract, derail, deter and even destroy.

Image credit: Stencil

And, although Pressfield's focus is the war we face (mostly internal, sometimes external) when we set out to create something new, this Resistance is a mighty force elsewhere — in relationships, in health, in learning, in applying for jobs, in trying new things, in traveling, in serving, in loving, in innovating, in completing …. So many places!

Well, Pressfield has written the book, so I won't go further here. Go check it out yourself if you haven't before. It's a swift but meaty read – and a worthwhile reread.

The best-kept secret to countering Resistance

Resistance is fierce and mighty! Because of its grip on and threat to each one of us, Resistance has stopped many a good idea, many a worthwhile endeavor, before it could ever come to life.

Sometimes, Resistance slays in mid-stream. And, at times, Resistance meets you right on top of the peak you've just scaled, ready to push that boulder down on top of you.

But here's the secret: Resistance only works when you've given yourself a Plan B.

Oh, how I wish I had learned this much earlier in life!

But I've been learning it now, especially over the last several months. I've been participating in online challenges. These are through a social-habit building app called SPAR. You can read more about this right here (midway through the article).

How SPAR works

SPAR is all about loss aversion. For those of us who have at least one competitive bone in our bodies, I have to say — it works! I know I don't want to miss doing what I've committed to do even once because then, in the end, I don't get to split the winner's pot with the other "survivors."

For me, it's not really about making money. For real. Rather, it's about forming positive habits, having some fun, and making a bit of pocket money in the process.

Personally, I'm planning to cash out my pot towards the end of this year. I will use the money for both Christmas gifts and some year-end extra giving. I can't wait!

And, from now to then, I'll be exercising, writing, reading and even cleaning my way to a better life. A better me! It is so motivating!

The wall I faced this morning

I had taken some nighttime cold medicine before going to bed. I knew the wall would be especially fierce when the alarm rang at 4:40. But it was even worse, as torrential rain poured down outside. I lay in my bed enveloped in darkness, with still a bit of that stuffy feeling. My husband planned to stay in bed another 45 minutes. I almost talked myself out of going to my 5:45 am Barre class at the gym.

But I didn't. For three reasons:

1 | I've drawn the line.

I've told myself, unless I'm sick (really sick), terribly injured, recovering from surgery, out of town or there's an emergency, I'm going to work out early in the morning three days/week with an instructor I'm coming to love. No exceptions.

2 | I read a book.

Last year my husband and I read the book Younger Next Year (regular and unleaded — no, just kidding — female version here!). I don't agree with everything in this book. But the book itself is compelling.

Take note: If you, dear reader, are 40 and above, you really should grab this book and read it. I'm committed to at least four — more like five to six — days of vigorous exercise and/or strength training each week. Bar(re) none.

3 | I've got someone expecting me.

I'm loving my 5:45 am spin (cycling) and barre class instructor! She is a kick, and she makes showing up totally worth it. And I feel the workouts a ton afterwards. I can feel my body getting healthier and stronger every day.

Image credit: Stencil

One additional benefit no doubt is I feel great every day, consistently better than I've felt for years! This has a spillover effect in everything I'm doing. And, by extension, this makes me a better person for others — and for our world. (Yes, I always think in those terms!)

All this, I'll confess, from a person who is not a natural morning person at all! To be sure. I've had to learn it. Just go ask my husband, Dale DePalatis!

The SPAR challenges have triggered something new in me, and they can do this for you, too! So can this Younger Next Year book.

When you don't give yourself a Plan B for whatever awesome thing you're trying to do (with the important exceptions I've listed above), you just do it. Nike got that long ago. Why didn't I?

How about you now?

Copyright 2019 © by Caroline DePalatis, YourGlobalFamily. All rights reserved.