Essay: Cooperative Federalism and Federal Takings After the Trump Administration's Border Wall Executive Order

Abstract

The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal immigration agenda pushed by the Trump Administration. These efforts to resist rely upon self-determined local and state policymaking or the federal courts to sustain sovereign autonomy. However, amidst the more well-known examples of “uncooperative federalism,” such as the travel ban and sanctuary cities, is a property law angle to “cooperative federalism.” A recently introduced bill in Congress to limit the federal government's takings power along the border may be viewed not only as a political reaction to an arguably heavy-handed federal immigration policy, but an aide-mémoire to an old cooperative system of land acquisitions between the federal government and the states in the early republic. This Essay sheds light on the old cooperative system of land acquisition between the federal government and the states in light of today’s debates over land acquisition for the construction of an international wall.

Keywords: Cooperative Federalism, Border Wall, Eminent Domain, Federal Takings, Trump Administration