One of President Biden’s first executive orders was to pause construction on the country’s border wall with Mexico. Last week, Biden doubled down: He declared an end to the national emergency on the border with Mexico and promised that no more taxpayer money would go to the wall.
But even before Biden’s presidency, the wall didn’t get very far. Despite President Donald Trump’s promises, the administration built barely more than a dozen miles of new primary barrier and replaced or put up secondary barriers on less than 400 miles.
My book, “Property Without Rights,” suggests that the wall failed in large part because U.S. law makes it very difficult to seize land from private landowners, which the federal government needed to do to build the wall. Other countries’ citizens have much weaker property rights. For instance, in Latin America, many people in both rural and urban areas have no land titles or cannot reliably defend their property from court seizure because of poor government and private record-keeping.
Land seizures aren’t a legal slam-dunk
U.S. eminent domain laws grant governments the authority to seize private property for the public good. But they also give private citizens broad recourse to challenge government actions. The border wall has been caught up in legal battles with landowners at the border who either refuse to sell or demand sky-high prices for their land.
Building the border wall is a classic example of what scholars call a holdout problem. These problems are common with large-scale development projects that require aggregating and assembling many plots of land. They are particularly acute when a project is announced publicly before it’s launched and when private property rights are strong.
Once a project such as a border wall is announced and it is clear that success hinges on acquiring specific pieces of land, each landowner recognizes their power to block the entire project. Landowners can flat-out refuse to cede their land and tie up the project in court, or they can demand sizable payoffs for their property that the government may not want to pay. The Texas Civil Rights Project represents landowners such as the Cavazos family, who categorically reject giving up their land despite government efforts to seize it.
Building a border wall entails purchasing or expropriating land from a continuous string of property owners over the course of hundreds of miles. One gap in the wall ruins its efficacy. This fundamentally differs from a project such as building a power plant in a neighborhood, in which a government needs to acquire only one sufficiently sized plot.
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Practical obstacles to land acquisition are legion
Even in cases in which the government may be able to prove in court that it has a compelling public need for the land under eminent domain law, landowners can still drag out the process by challenging every move. Many landowners in Texas have done precisely that. In fact, as recently as 2019, some Texas landowners were still litigating land seizures from President George W. Bush’s presidency.
As part of their opposition to the wall, congressional Democrats asked the Government Accountability Office to study obstacles to seizing the land. The resulting report reveals a process riddled with legal and practical land mines.
It would be easier to complete a large-scale project of this sort if it didn’t have to be made public for political reasons. Consider how Grand Teton National Park was created. John D. Rockefeller Jr., the conservationist son of Standard Oil’s founder, dreamed of creating a large park around the Tetons and began surreptitiously buying up ranch land. He feared that if locals realized what he was doing and who was behind it, they would demand higher prices for their land.
So Rockefeller formed the Snake River Land Co. and hired circumspect agents to purchase land on his behalf. Once he acquired enough, he donated it to the federal government to create a national park. His intuition was right: Once some locals uncovered the scheme, they organized to oppose it and claimed that they had been manipulated and swindled.
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Property rights rule in the United States
Trump underestimated a second complication: the strength of private property rights along the border and legal protections for landowners. The U.S. government does not have the authority to simply steamroll landowners by forcing them off their land or demanding that they sell for a fixed price.
Furthermore, support for strong property rights divided Republicans themselves on the wall. Conservative lawyers and public interest law firms have long used the Constitution’s Fifth Amendment takings clause to block government-funded projects. Republican holdouts banded with Democrats to starve the project of funding.
Public projects like the wall are easier to build elsewhere
Property rights are not sacrosanct in all countries. This makes it easier for a government to seize property to pursue large-scale public projects. Take Rio de Janeiro before the 2016 Olympics. When Brazilian officials decided they wanted to make more space for the games in the city, they began forcing residents out of poor neighborhoods known as favelas to seize their land. This worked because residents of favelas do not have secure property rights. Most settle in extralegal fashion as land occupiers or squatters. Few pay property taxes. Knowing this, the government simply fired up the bulldozers and forced residents out. The marginal status of favela residents of course differs from that of most of the Texas landowners targeted in Trump’s wall effort. But Brazil even bulldozed some favelas where residents had won legal recognition of their ownership.
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Mexico similarly created many of its famous beachside resorts by appropriating land from locals. Take Puerto Vallarta. After seizing land owned by Americans and granting it to a group of petitioners to build a town in the 1920s, the government did an about-face in the 1960s and took back some of the land to sell to private developers.
Trump might have found better conditions for building a wall with Mexico had he been able to build it on the Mexican side decades ago. But U.S. property law and holdout problems are enormous obstacles today. If any future presidents seek to complete Trump’s wall, they would be well advised to take note of these difficulties.
Correction: An earlier version of this article stated that Texan landowners are still in court over land claims dating to the George W. Bush era, although the source was dated 2019.
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Michael Albertus (@mikealbertus) is an associate professor of political science at the University of Chicago and author of “Property Without Rights: Origins and Consequences of the Property Rights Gap” (Cambridge University Press, 2021).