A man in Tijuana, Mexico, watches a border wall prototype being built near San Diego in October. (AFP/Getty Images)
Gerald S. Dickinson is an assistant professor of law at the University of Pittsburgh Law School, focusing on constitutional property, state and local government law, land use, affordable housing law and policy and urban development.

President Trump still wants to push ahead with a wall on the U.S.-Mexico border. He said Tuesday that a deal with Democrats in Congress about funding the government is unlikely in part because they won’t go along with his immigration policies. And recent events have stoked concerns of imminent land standoffs: The White House is seeking to hire additional attorneys to seize land. Cards Against Humanity purchased land in defiance. But less publicized is recent efforts by 10 Democratic members of Congress representing districts near the U.S.-Mexico border, including Texas, New Mexico, California and Arizona, to introduce a bill that would prohibit Elaine Duke, acting secretary of homeland security, and Attorney General Jeff Sessions from “using eminent domain to acquire land for the purpose of constructing a wall.”

The ultimate fate of the wall — one of the central promises of  Trump’s 2016 campaign — may wind up being determined by short-term political considerations (do Republicans rally behind, or flee, the White House as next year’s elections approach?), budget concerns (how many billions of dollars will it cost?) or simple logistics (how should it be built?).

But there’s another reason members of Congress may want to consider supporting the bill’s sponsors in prohibiting federal eminent domain to acquire land for its border wall project: It may be what the founding generation intended.

On a practical level, it will be generally difficult for the Trump administration to get the land it needs to build a wall on the border. The federal government owns only about one-third of the 2,000 miles of the border. The rest is owned by state and local governments, private property owners or Native American tribes. Texas is a major obstacle, since it retained all its public lands when it was admitted into the Union in 1845 and has since sold much of the land to private landowners and local governments. The Trump administration would need to negotiate hundreds, if not thousands of settlements. If that fails, Trump would need to seize land by eminent domain, potentially rivaling the largest federal land acquisition projects in history.

Beyond the practical obstacles, the historical record suggests that attempts by the federal government to seize land within state boundaries for federal projects without consent and cooperation from the states would have probably raised quite a few eyebrows among members of the earliest sessions of Congress. William Baude’s excellent scholarship is instructive on this history of cooperative federalism.

The Fifth Amendment’s Takings Clause states “nor shall private property be taken for public use without just compensation.” But nothing in that provision expressly gives Congress the power of eminent domain. James Madison left a thin paper trail as to what exactly he intended in drafting the Takings Clause. There is no doubt that some members of Congress were believers in a federal eminent domain power, but the little evidence that is available on the question is still telling. Baude’s research has unearthed an important narrative about the power that is relevant today.

Rep. James Pindall of Virginia, for example, questioned if “any of the framers of the Constitution could ever have imagined … that the power to … lay open the enclosure of individuals … from one end of the State to the other, without their consent … passed into the hands of Congress by implication.” Rep. Silas Wood of New York noted that “the appropriation of the soil … belong[s] exclusively to the States.”

Even President James Monroe was skeptical, noting that the “condemnation of the land, if the proprietors should refuse to sell it … must be done by the State.” Forty years later, echoing Monroe’s skepticism, Sen. Louis Wigfall of Texas reminded members of Congress that, like Monroe, the Republican Party’s position was against a federal eminent domain power.

So how did the federal government in the early republic acquire land to build courthouses, post offices, lighthouses, navy yards, roads or wall-like structures like forts? The practice was consent and cooperation with the states. If the government needed land, it would ask for permission. The government would request that a state legislature seize private land and then purchase it, or the government would file suit in state court as a plaintiff, hoping to obtain a favorable ruling from a state trial court judge. The point is that for almost eight decades after ratification of the Constitution, Congress arguably did not recognize a federal power to directly take private property for its major projects and did not exercise pure condemnation powers.

The Supreme Court was just as reluctant as Congress to acknowledge a federal power to seize land inside state borders. In Pollard’s Lessee v. Hagan, the Supreme Court stated that outside the District of Columbia and the territories, “the United States have no constitutional capacity to exercise . . .  eminent domain.” Five years later, in Goodtitle v. Kibbe, the court reiterated this position, stating that the federal government could not “grant or confirm a title to land when the sovereignty and dominion over it had become vested in the State.”

However, in 1875, at the dawn of a post-Civil War time period when significant changes in our understanding of the Constitution and the nature of state and federal powers were transforming, the Supreme Court erased any lingering doubts about the federal eminent domain power in Kohl v. United States, stating that “[t]he Constitution itself contains an implied recognition of [eminent domain] beyond what may justly be implied from the express grants.” Following Kohl, the prior cooperative system of consent was tossed aside. Congress enacted sweeping statutory power in the late 1800s authorizing federal agencies and officers to directly acquire property necessary for, among other things, national parks, civil and military projects.

Republicans who oppose the wall (and even those on the fence, so to speak) now may welcome the opportunity to reclaim the spirit of the founding generation as their guiding principle against federal intrusion into state territory along the U.S.-Mexico border, especially as many Republicans subscribe to originalism as a constitutional philosophy. Oddly enough, the proposed bill, sponsored entirely by Democrats, offers Republicans the opportunity to embrace the old system of consent and cooperation with, at the very least, states along the southwest border. Imagine Sessions and a Republican-controlled Congress requesting a Republican-controlled state legislature in Texas to seize constituents’ (farmers, ranchers, homeowners) private property to advance a Republican president’s federal immigration policy of an international border wall.

As for Democrats, they also may find solace in this historical account because it offers a property law dimension to what Heather Gerken calls “progressive federalism.” From the travel ban to sanctuary cities, state and local governments have redoubled their efforts to mobilize, resist and shield constituents from federal policies that they perceive as an anathema to their interests. The Democrats’ bill does more than protect their constituents’ land from federal seizure: It has the potential to implicitly force the Trump administration to cooperate and seek consent from Texas, New Mexico, Arizona and California before seizing land to fortify the southwest border or else face some “uncooperative federalism.”

All in all, while too much water has flown under the bridge to ever seriously consider completely stripping the federal power of eminent domain, the skeptical sentiments and spirit of the founding generation, along with the actual historical practice of consent and cooperation in acquiring land, should have contemporary appeal for those concerned that Trump’s prior admiration for taking private property for his businesses is now being wielded for his immigration policy preferences.