President Trump has built about 455 miles of new border wall in his four years, and the total length of America's border barrier now exceeds 700 miles. Starting even before Trump, the Department of Homeland Security (DHS) took the land for this misbegotten project from border residents including private landowners, American Indian tribes, and the states. President Joe Biden should go beyond halting further construction—he should give the land and wall back. If they want to keep and maintain the wall, they should be free to do so. But if they don’t, let them take it down.
There are a lot of very complex and possibly unprecedented questions to work out how the president could transfer the wall back to private hands, and I attempt to describe them here. But given the unusual circumstances, it’s still unclear to me the best available option is for each component of the wall. This post is intended to start the conversation about how the government to rectify its mistake in seizing this land, which at least to my knowledge has not even seriously begun.
The State of DHS Property for Border Wall Construction
In the last two years, the government has filed nearly 150 lawsuits to take private land, and it has recently seized 135 private tracts of border land to build the wall and was—as of July 2020—preparing to take another 991 tracts—altogether about 8.2 square miles before the end of the year. Under federal law, as soon as the government files the declaration of taking in any court and deposits a nominal amount in an escrow account for the land owner, the land title transfers to the federal government, even if the court has not yet determined just compensation and the land owners has not accepted nor accessed the amount offered.
This means that DHS now owns border land in several situations: 1) where just compensation paid and a wall built, 2) just compensation paid and no wall built, 3) just compensation not yet paid and a wall built, and 4) just compensation not yet paid and no wall built. The federal government should transfer land in all four situations back to border residents or sell it, but it could prioritize transfers in the last three situations where either just compensation was not yet paid or the wall was not built.
DHS Must Choose to Give Up the Wall
The federal government has the authority to dispose of the land. While the title transfers upon the declaration and deposit, courts allow property owners to retain the title in situations where the government has taken the property without congressional authorization. It is possible that DHS could simply declare that certain takings were illegal and therefore void. This could be, for example, based on the fact because the Trump administration used funds not appropriated for this purpose or because the Department of Homeland Security acting secretaries were illegally appointed. But this would only apply to a limited number of takings.
For property that is definitely within DHS’s ownership, the Government Accountability Office’s (GAO) Red Book lays out the complex procedures in the law for disposal of federal property. Border Patrol must tell DHS that it no longer needs the property, and DHS must first identify that no other subagency within DHS needs the property and then tell the General Services Administration (GSA) that it is “excess” property.
GSA then must then “survey” the needs of other federal agencies to determine if any need it. This survey need not follow any “specifically detailed procedures.” However, GSA regulations provide that it will circulate a “Notice of Availability” to all federal agencies for 30 days. If GSA determines that no other federal agency needs the property, it can declare it “surplus” and prepare to dispose of it. It cannot make a “surplus” property determination if any agency has requested the property. It’s highly unlikely that a fight would break out between agencies over the border wall land.
GAO states that “the arbitrary classification of property as excess or surplus in order to provide statutory authority for disposal which otherwise does not exist, is improper.” For this proposition, it cites an instance in 1947 where the CIA attempted to sell a warehouse that it was still planning to use. For the border wall, Border Patrol would need to relinquish any claims to control over the wall.
GSA Must Dispose of the Land
The law allows GSA to permit any agency including DHS to dispose of its property, but GSA regulations forbid it in the case of the land under the wall (though the wall itself can be disposed of by DHS). Thus, DHS would transfer the land to GSA for disposal. However, even if GSA agrees that federal land is surplus, the prior owner of border land is not entitled to receive the land back unless the deed by which the government received the land specifies that it will return the land. It would be surprising if border wall deeds contained such a provision, and it is not readily apparent whether Border Patrol can seek to amend them to include a return provision or void the sale after the fact for reasons other than illegality. This is a very important issue because it would allow direct return to the owners who the Trump administration wronged.
GSA regulations require it to obtain an appraisal of land unless the estimated fair market value is less than $300,000. There are no specific procedures for returning land seized from another party. By law, GSA must usually dispose of property by publicly advertising for bids, but it can use a “negotiated sale” so long as it obtains “feasible competition.” While GSA could use competitive bidding to dispose of the border wall, it would be better to try to transfer as much of the wall and land as possible back to the originating landowners through negotiated sales.
A determination of what it means to obtain feasible competition for a negotiated sale is entirely up to the discretion of GSA, so this provision does not require the acceptance of bids. By law, GSA must generally obtain fair market value but there are some fairly broad exceptions to this requirement for “the public health, safety, or national security,” “public exigencies,” or for any period up to 3 months for “a specifically described category of personal property.” GSA should use these authorities to fast-track the sale of border land back to landowners.
Even if Border Patrol were willing to sell the border wall land back, Border Patrol officials may be unwilling to relinquish all claims to every section of the wall if they feel they might want to use, for instance, gates in the wall. Border Patrol could always choose to retain the land where the gates are, but sell the remainder. Border Patrol is still making repairs to the wall, which could be interpreted to mean that the property could not be rightly considered surplus, undermining the legality of the transfer. Border Patrol would need to agree that it has no desire to maintain the wall.
There’s also the fact that some landowners have not received just compensation from DHS yet for the initial seizures. GAO does not discuss this issue. There doesn’t appear to be authority for GSA to trade DHS’s debt in exchange for the property, but it’s another potential way to resolve this issue that DHS should explore. Without this option, however, property owners would have to pay GSA for property for which they had still not received just compensation. DHS should quickly settle these cases so landowners have the funds to obtain the title back from GSA.
It’s also unclear if anyone would have standing to sue to stop the sale of property, but it is likely that some Trump supporting groups would try. However, the statute grants broad discretion to GSA, and GAO did not identify any instances where a court held that a transfer pursuant to a valid surplus property determination was invalid.
Some landowners may not want their land back because they support the border wall and would prefer DHS to continue to maintain it. Even if they don’t support, they may not want it back because it now contains a massive border wall, which they would assume responsibility for. They may have also moved or sold the remainder of their land and have no ability or interest in revisiting those decisions. In these cases, DHS should simply dispose of the property through open bidding and allow private or public entities to purchase the land, removing the responsibility for maintaining the wall from the federal government.
While the exact mechanism in every case might not be clear, the Biden administration has the ability to ends its responsibility for maintaining a border wall that the president has labeled unnecessary. Rather than repeatedly paying repair the holes that are being cut every single week, DHS could receive an infusion of billions of dollars that could be used to upgrade infrastructure for admitting immigrants into the country legally, which is the best way to address illegal immigration.