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56 Hous. L. Rev. 635 (2019)
635
COMMENT
THE FEDERAL GOVERNMENT’S POWER OF
EMINENT DOMAIN OVER STATE LANDS
REGARDING THE U.S.-MEXICO BORDER
WALL
ABSTRACT
Construction of the U.S-Mexico border wall remains in the
media spotlight with continued debate over the balance between
the wall’s necessity and its potentially adverse impacts.
Notwithstanding this debate, the acts providing for construction
of the wall afford the federal government broad powers to
disregard other federal legislation that might otherwise hinder the
construction from proceeding. These acts also provide for the
acquisition of land for the border wall through condemnation.
Even though the federal government has survived several
challenges to its exercise of eminent domain power to acquire land
for the border wall, Texas lawmakers have introduced a bill in the
Texas Legislature expressing specific opposition to the use of
eminent domain for border wall construction. This Comment
examines the potential effect of this bill by analyzing the power of
the federal government to acquire state-owned lands by
condemnation and uses the hypothetical construction of the U.S.-
Mexico border wall in the Big Bend Ranch State Park as a modern-
day example. The federal-state balance of power is investigated in
light of state statutes providing automatic consent to such federal
actions and through a study of potential limits to the federal
government’s powers under both the Fifth Amendment Takings
J.D. Candidate, University of Houston Law Center, 2019. M.Eng. Chemical
Engineering, 1988, University of Nottingham. This Comment received the Beck Redden
LLP Award for Best Paper Addressing Complex Litigation Issues. Special thanks to
Professor David Fagundes for his guidance, and to my wife, Polly, for her enduring
encouragement and support.
56 Hous. L. Rev. 635 (2019)
636 HOUSTON LAW REVIEW 56:3
Clause and the Enclave Clause of the Constitution. This Comment
finds that although the power of the federal government to procure
state-owned lands might be limited only by a judicial finding that
the selection of land is arbitrary and capricious, the required
burden of proof on the part of the challenger presents a high
threshold. Additionally, though the Takings Clause of the Fifth
Amendment of the Constitution applies to the federal government
when it acquires state-owned land for a public use by
condemnation, the federal government is bound only to provide
appropriate compensation to the state. Thus, even if passed, the
opposition bill in the Texas legislature would have no effect in
curtailing the powers of the federal government. Furthermore,
should the federal government somehow act beyond its
constitutionally-enumerated powers in condemning specific state-
owned lands with consent of the state, then it would be difficult to
identify a suitable plaintiff who would have the necessary
standing to oppose or enjoin such actions.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................... 638
II. FEDERAL LEGISLATION PROVIDING FOR THE
BORDER WALL ..................................................................... 641
A. Summary of the Acts and Their
Relevant Provisions ..................................................... 641
B. Examining Legislative Intent with Respect to
Enumerated Constitutional Powers ............................ 642
1. Intent of the IIRIRA (as Amended) as
Revealed in the Act Itself ..................................... 643
2. Analyzing the Purpose of the IIRIRA
(as Amended) Against the Federal
Power to Regulate Naturalization ....................... 643
3. Comparing the IIRIRA (as Amended)
with the Federal Power to Regulate
Commerce with Foreign Countries ...................... 644
4. Examining Whether the Waiver
Provision is Consistent with the
Accepted Domains of the Legislative
and Executive Branches ...................................... 644
C. Conclusions ................................................................. 645
III. TEXAS STATE LEGISLATIVE PROVISIONS
CONCERNING THE FEDERAL GOVERNMENT’S
EXERCISE OF EMINENT DOMAIN POWER ............................. 646
56 Hous. L. Rev. 635 (2019)
2019 POWER OF EMINENT DOMAIN 637
A. The Extent of Statutory Consent to the
Federal Government’s Exercising of
Eminent Domain in Texas .......................................... 646
1. Interpretation of the Current Texas
“Consent” Statute ................................................. 646
2. The Current Statute Viewed in Light
of Judicial Interpretations
of Previous Versions ............................................ 647
3. Remaining Portions of the
Current “Consent” Statute ................................... 648
B. The Likely Effect if Bill S.C.R. 31 is Passed ............... 649
C. The Effectiveness of a State’s
Consent to Unconstitutional
Federal Actions ........................................................... 650
D. Brief Hypothetical: Potential Ramification
of an Unconstitutional Condemnation of
State Lands by the Federal Government
with the State’s Consent .............................................. 650
E. Conclusions ................................................................. 651
IV. FEDERAL POWER OF EMINENT DOMAIN AGAINST
THE STATES AND THE TAKINGS CLAUSE
OF THE FIFTH AMENDMENT ................................................. 652
A. Summary of Federal Condemnation Processes .......... 652
B. The Federal Power of Eminent Domain
and the Takings Clause of the
Fifth Amendment ........................................................ 653
C. Limitations to Opposing Condemnation
by the Federal Government ......................................... 655
D. The Tenth Amendment as a Challenge
to Appropriate Federal Use
of Eminent Domain ..................................................... 656
E. Conclusions ................................................................. 658
V. THE FEDERAL VERSUS STATE BALANCE
OF POWER UNDER THE ENCLAVE CLAUSE
WITH RESPECT TO EMINENT DOMAIN .................................. 659
A. Intent of the Enclave Clause ....................................... 659
B. Judicial Construction of the
Enclave Clause ............................................................ 661
C. The Meaning of “Other Needful Buildings” ................ 663
D. Conclusions ................................................................. 664
VI. OVERALL CONCLUSIONS ...................................................... 664
56 Hous. L. Rev. 635 (2019)
638 HOUSTON LAW REVIEW 56:3
I. INTRODUCTION
This Comment explores the federal government’s power to
compulsorily acquire state-owned lands, with a focus on the wall
along the border with Mexico, and specifically addresses state-
owned lands within Texas. President Trump’s overtures while
campaigning1 and his Executive Order 13767 of January 25, 2017,
directing executive departments and agencies to deploy “all lawful
means” to secure the southern border2 has reignited the national
debate over the legitimacy and desirability of a border wall.3 The
prospect of building a large border wall in the Big Bend area in
Texas has attracted specific media attention,4 and several Texas
lawmakers introduced Bill S.C.R. 31 in the 85th Regular Session
of the Texas Legislature to seek a resolution that “the 85th
Legislature of the State of Texas hereby express its opposition to
using eminent domain for the construction of a wall or fence along
the U.S.-Mexico border . . . .”5 This Comment shows that, despite
such sentiment and legislative efforts, there is no impediment to
federal condemnation of state-owned lands to construct a border
wall and therefore, even if Bill S.C.R. 31 is passed, the Texas
Legislature’s mere expression of opposition to such federal use of
eminent domain will be effectively futile.
Big Bend Ranch State Park lies adjacent to Big Bend National
1. Jenna Johnson, Here Are 76 of Donald Trump’s Many Campaign Promises,
WASH. POST (Jan. 22, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/
01/22/here-are-76-of-donald-trumps-many-campaign=promises/?utm_term=.256493c5a15f
[https://perma.cc/94HR-Q6BB].
2. Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).
3. Trump’s Border Wall, Immigration Plans Re-emerge at Top of National Debate,
FOX NEWS (Sept. 26, 2017), http://www.foxnews.com/politics/2017/08/05/trumps-border-
wall-immigration-plans-re-emerge-at-top-national-debate.html [https://perma.cc/XHR5-
84EJ]; Todd J. Gillman, White House Defends Use of Eminent Domain for Border Wall as
Feds Gird for Land Fights, DALL. MORNING NEWS (Mar. 22, 2017),
https://www.dallasnews.com/news/politics/2017/03/22/white-house-defends-use-eminent-
domain-border-wall-feds-gird-land-fights. [https://perma.cc/4MYM-E2J2]. Additionally,
disagreement between the President and the House of Representatives over funding for the
wall was at the center of the partial shutdown from December 2018 until January 2019.
See Nicholas Fandos et al., Trump Signs Bill Reopening Government for 3 Weeks in Surprise
Retreat from Wall, N.Y. TIMES (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/pol
itics/trump-shutdown-deal.html [https://perma.cc/9TXU-YD82].
4. Asher Price, With Land Already in Hand, Trump Eyes Big Bend for Border Wall,
AUSTIN AM.-STATESMAN (Sept. 22, 2018, 1:49 AM), https://www.statesman.com/news/2017
0316/with-land-already-in-hand-trump-eyes-big-bend-for-border-wall [https://perma.cc/LN
8A-JEFP]; Fernando Ramirez, Big Bend’s Incredible Views Threatened by Trump’s Border
Wall, HOUS. CHRON. (Mar. 17, 2017, 6:15 PM), https://www.chron.com/news/houston-
texas/texas/article/Big-Bend-stunning-threatened-from-Trump-s-border-11009657.php
[https://perma.cc/YL5K-RL94].
5. Tex. S. Con. Res. 31, 85th Leg., R. S. (2017).
56 Hous. L. Rev. 635 (2019)
2019 POWER OF EMINENT DOMAIN 639
Park and includes land along the Rio Grande—the river forming
the border with Mexico.6 The land was purchased by the Texas
Parks & Wildlife Department from private owners in 1988 and is
operated as a natural preserve.7 A border wall’s potential
environmental impact here, just as elsewhere, has been featured
in the media.8 Furthermore, the necessity for a wall specifically in
the Big Bend area is also at issue given the very small number of
illegal entries reported for the area compared to other locations
along the U.S.-Mexico border.9 In light of all these factors, this
Comment uses Big Bend as an example upon which to examine a
more fundamental question: a legal justification in support of a
federal taking of state-owned lands.
Political wrangling over the border wall continues. In
February 2017, fifty-nine members of the U.S. House of
Representatives introduced a bill seeking to prevent further
construction of the border wall.10 The House referred the bill to
three Committees, each of which then referred it to one of three
6. Big Bend Ranch State Park, TEX. PARKS & WILDLIFE DEP’T, https://tpwd.texas.g
ov/state-parks/big-bend-ranch/park_history [https://perma.cc/PA4S-W3T4] (last visited
Jan. 20, 2019).
7. Id.
8. See, e.g., Ramirez, supra note 4; Jeremy Schwartz, Border Wall May Sidestep
Review and Cut Off Access to Wildlife Refuge, AUSTIN AM.-STATESMAN, (Sept. 22, 2018, 3:22
AM), https://www.statesman.com/NEWS/20170721/Border-wall-may-sidestep-review-and-
cut-off-access-to-wildlife-refuge [https://perma.cc/Y97T-4XFP]; Melissa del Bosque, Against
the Wall, TEX. OBSERVER (June 27, 2008, 12:00 AM), http://www.texasobserver.org/2796-
against-the-wall-not-even-federal-law-can-keep-bushs-fence-from-ripping-through-natural
-areas-along-the-rio-grande [https://perma.cc/EAC8-FK9V]; Daniella Silva & Suzanne
Gamboa, Trump’s Border Wall ‘Catastrophic’ for Environment, Endangered
Species: Activists, NBC NEWS (Apr. 22, 2017, 11:25 AM), https://www.nbcnews.com/science
/environment/trump-s-border-wall-catastrophic-environment-endangered-species-activists
-n748446 [https://perma.cc/HG55-4WAR].
9. According to the Department of Homeland Security U.S. Customs and Border
Protection, the Big Bend Sector of operations comprises 510 miles of the Rio Grande River
frontage, which is nearly a quarter of the southwestern border, and its operational area
covers 165,154 square miles. Big Bend Sector Texas, U.S. CUSTOMS & BORDER PROTECTION
(Apr. 11, 2018), https://www.cbp.gov/border-security/along-us-borders/border-patrol-
sectors/big-bend-sector-texas [https://perma.cc/5TDX-WYK2]. There were 6,002
apprehensions of illegal aliens in the Big Bend Sector in Fiscal Year 2017, which is a mere
1.9% of the total number of such apprehensions along the border with Mexico. U.S. Border
Patrol: Total Illegal Alien Apprehensions by Month, FY 2017, U.S. CUSTOMS & BORDER
PROTECTION (2017), https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP
%20Total%20Monthly%20Apps%20by%20Sector%20and%20Area%2C%20FY2000-FY201
7/.pdf [https://perma.cc/BZ7S-QPNB]. The necessity of a physical barrier in such an
environmentally-sensitive area is under question. See Angela Kocherga, Big Bend National
Park Visitors Worry About Trump’s Proposed Border Wall, DALL. MORNING NEWS (Nov. 29,
2016), https://www.dallasnews.com/news/mexico/2016/11/29/big-bend-national-park-visito
rs-worry-trumps-proposed-big-border-wall [https://perma.cc/H7UV-7REK].
10. Build Bridges Not Walls Act, H.R. 837, 115th Cong. (2017).
56 Hous. L. Rev. 635 (2019)
640 HOUSTON LAW REVIEW 56:3
Subcommittees, where it has sat ever since.11 Furthermore,
questions over the fundamental correctness of the federal power of
eminent domain continue to attract debate.12 While scholars have
postulated various potential legal challenges to the erection of the
border wall,13 and litigants have tried and failed to block the
federal government’s progress of the wall’s construction,14 this
Comment presents an objective analysis of the legal battleground
with respect to federal eminent domain power over state-owned
lands. Part II provides a brief overview of the federal legislation
concerning border wall construction. Part III examines Texas state
laws that apparently acquiesce to a federal exercise of eminent
domain. Lastly, Parts IV and V analyze the implications of the
U.S. Supreme Court’s interpretations of the “Takings” and the
“Enclave” clauses, respectively, of the Constitution of the United
States.
11. The bill’s current status is reported on Congress’ website. All Actions H.R.837—
115 Congress (2017–2018): Build Bridges Not Walls Act, CONGRESS.GOV,
https://www.congress.gov/bill/115th-congress/house-bill/837/all-actions?q=%7B%22search
%22%3A%5B%22hr837%22%5D%7D&r=1 [https://perma.cc/YP8Q-6Z9B] (last visited Jan.
20, 2019).
12. Gerald S. Dickinson, The Founders Would Have Opposed Seizing Land for
Trump’s Border Wall, WASH. POST (Nov. 29, 2017), https://www.washingtonpost.com/news
/posteverything/wp/2017/11/29/the-founders-would-have-opposed-seizing-land-for-trumps-
border-wall/?utm_term=.e8c20642703b [https://perma.cc/S3CC-V9RZ]; Jazz Shaw, The
Democrats’ Hilarious Eminent Domain Argument Against the Wall, HOT AIR (Nov. 29, 2017,
5:31 PM), https://hotair.com/archives/2017/11/29/democrats-hilarious-eminent-domain-
argument-wall [https://perma.cc/H2JC-A249].
13. Denise Gilman, Seeking Breaches in the Wall: An International Human Rights
Law Challenge to the Texas-Mexico Border Wall, 46 TEX. INT’L L.J. 257, 275–84 (2011)
(analyzing human rights issues); Stephen P. Mumme & Oscar Ibáñez, U.S.-Mexico
Environmental Treaty Impediments to Tactical Security Infrastructure Along the
International Boundary, 49 NAT. RESOURCES J. 801, 804–07 (2009) (discussing how erecting
the wall might contravene an international environmental treaty); Jenny Neeley, Over the
Line: Homeland Security’s Unconstitutional Authority to Waive All Legal Requirements for
the Purpose of Building Border Infrastructure, 1 ARIZ. J. ENVTL. L. & POL’Y 139, 150–61
(2011) (concluding that the statutory waiver of any law is unconstitutional); David Fisher,
Note, The U.S.-Mexico Border Wall and the Case for “Environmental Rights”, 50 TEX. INT’L
L.J. 145, 160–67 (2015) (concerning environmental issues); Nicole Miller, Note, How
Property Rights Are Affected by the Texas-Mexico Border Fence: A Failure Due to Insufficient
Procedure, 45 TEX. INT’L L.J. 631, 641–43, 646–53 (2010) (proposing procedural
improvements to satisfy concerns over Due Process).
14. See, e.g., Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 124, 126–27
(D.D.C. 2007), cert. denied, 554 U.S. 918 (2008) (holding that the Secretary’s exercise of
statutorily-permitted waivers of certain laws did not “transform the waiver into an
unconstitutional ‘partial repeal’ of those laws,” and the statutory waiver provision itself
was not “an unconstitutional delegation of legislative power”); City. of El Paso v. Chertoff,
No. EP–08–CA–196–FM, 2008 WL 4372693, at *1 (W.D. Tex. Aug. 29, 2008) (denying
plaintiffs’ application for a preliminary injunction against construction of a section of border
wall); Sierra Club v. Ashcroft, No. 04CV0272-LAB (JMA), 2005 U.S. Dist. LEXIS 44244, at
*16–25 (S.D. Cal. Dec. 12, 2005) (holding the delegation of decision-making to the Executive
Branch to be constitutional).
56 Hous. L. Rev. 635 (2019)
2019 POWER OF EMINENT DOMAIN 641
II. FEDERAL LEGISLATION PROVIDING FOR THE BORDER WALL
A. Summary of the Acts and Their Relevant Provisions
Through a succession of acts, Congress has given the
Secretary of Homeland Security sweeping powers to construct a
barrier along the border with Mexico. Construction of the border
wall is provided under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”),15 as amended
sequentially by the REAL ID Act of 2005,16 the Secure Fence Act
of 2006,17 and the Department of Homeland Security
Appropriations Act of 2008.18 Section 102(d) of the IIRIRA (as
amended) permits the Secretary of Homeland Security to “contract
for or buy any interest in land” that is deemed “essential to control
and guard the [border].”19 This authority extends to the use of
eminent domain.20 The REAL ID Act amended Section 102(c) of
the IIRIRA to permit the Secretary of Homeland Security to “waive
all legal requirements” that, in the Secretary’s sole discretion,
(s)he deems “necessary to ensure expeditious construction of the
barriers and roads under this section.”21 For example, the
Secretary can waive a wide array of laws and regulations
concerning the environment and the preservation of antiquities
and cultural heritage.22 In 2008, construction of a section of border
fence in Hidalgo County, Texas was commissioned when the
Secretary of Homeland Security exercised a waiver of twenty-
seven federal laws.23 Furthermore, the REAL ID Act provides that
15. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104–208, div. C, tit. 1, § 102, 110 Stat. 3009–546, 3009–554 (codified as amended at 8
U.S.C. § 1103 note (2012)) [hereinafter IIRIRA].
16. REAL ID Act of 2005, Pub. L. No. 109–13, div. B, tit. 1, sec. 102, § 102, 119 Stat.
302, 306 (codified as amended at 8 U.S.C. § 1103).
17. Secure Fence Act of 2006, Pub. L. No. 109–367, sec. 3, § 102, 120 Stat. 2638,
2638–40 (codified as amended at 8 U.S.C. § 1103).
18. Consolidated Appropriations Act, 2008, Pub. L. No. 110–161, div. E, tit. V, sec.
564, § 102, 121 Stat. 1844, 2090–91 (2007) (codified as amended at 8 U.S.C. § 1103).
19. 8 U.S.C. § 1103 (b)(1). As indicated by Miller, supra note 13, at 634 n.8, the
IIRIRA’s reference to the “Attorney General, in consultation with the Commissioner of
Immigration and Naturalization” was amended in the Department of Homeland Security
Appropriations Act to read “Secretary of Homeland Security.” (citing § 102, 121 Stat. at
2090).
20. IIRIRA, sec. 102(d)(1)(B), § 103, 110 Stat. at 3009–555 (codified as amended at 8
U.S.C. § 1103(b)).
21. REAL ID Act, sec. 102, § 102(c)(1), 119 Stat. at 306 (codified as amended at 8
U.S.C. § 1103 note 102(c)(1) (Improvement of Barriers at Border)).
22. See Determination Pursuant to Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as amended, 73 Fed. Reg. 19,077, 19,077–78 (Apr. 8,
2008).
23. Id.; see also Miller, supra note 13, at 635.
56 Hous. L. Rev. 635 (2019)
642 HOUSTON LAW REVIEW 56:3
“[a] cause of action or claim [regarding the waiver] may only be
brought alleging a violation of the Constitution of the United
States.”24 This presents a significant limitation to any legal
challenge to actions sanctioned under the relevant statutes,25 and
hence any review of the Secretary’s exercise of eminent domain
power over a state pursuant to the IIRIRA necessitates analysis of
the constitutional balance of power between the federal
government and the states.26
B. Examining Legislative Intent with Respect to Enumerated
Constitutional Powers
Although Congress enacts legislation pursuant to powers
granted to it by the Constitution, the Judicial Branch determines
the interpretation of the legislation.27 Generally, this
interpretation begins with an analysis of the plain language of a
statute and proceeds—albeit to varying extents—to an
examination of the statute’s legislative history only if this
language is unclear or ambiguous.28 In their determinations of
whether the statutes themselves are constitutional, courts may
pay attention to reported expressions of Congressional legislative
intent that tie those statutes to constitutionally enumerated
powers.29 This Part briefly explores how the IIRIRA, as amended,
24. REAL ID Act, sec. 102, § 102(c)(2)(A), 119 Stat. at 306 (codified as amended at 8
U.S.C. § 1103 note 102(c)(2) (Improvement of Barriers at Border)); see also Miller, supra
note 13, at 635.
25. See Miller, supra note 13, at 635 n.23 (discussing several cases that have
unsuccessfully challenged the constitutionality of the waiver provision and the limitation
on judicial review); Neeley, supra note 13, at 142 (discussing the waiver provision’s
restriction of federal appellate courts’ jurisdiction and how this has prevented successful
challenges to its constitutionality).
26. U.S. CONST. art. VI, cl. 2.; id. amend. X; IIRIRA § 102(d), 110 Stat. at 3009–555
(codified as amended at 8 U.S.C. § 1103(b)).
27. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the
province and duty of the judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each.”).
28. See Caminetti v. United States, 242 U.S. 470, 485 (1917). However, individual
Justices and judges disagree over the extent to which legislative intent should influence
interpretations of the meaning of words in a statute. See ROBERT A. KATZMANN, JUDGING
STATUTES 6 (2014) (describing a humorous interaction between Justices Scalia and
Sotomayor concerning their differing views over how much weight should be placed on
legislative history).
29. The following is an example with respect to the Commerce Clause: In United
States v. Lopez, Alfonso Lopez Jr. was convicted under the federal Gun-Free School Zones
Act of 1990 (GFSZA). 2 F.3d 1342, 1345 (5th Cir. 1993). Lopez then successfully appealed
his conviction under the rationale that the Act was unconstitutional under the Commerce
Clause. Id. at 1367–68. After an appeal, the U.S. Supreme Court confirmed the Fifth
Circuit’s decision, holding that the activity sought to be regulated had no substantial
56 Hous. L. Rev. 635 (2019)
2019 POWER OF EMINENT DOMAIN 643
relates to enumerated federal regulation power concerning
immigration and commerce. To the extent that the statutes’
language under review here may be considered clear, the brief
analysis presented in this Part is performed in light of the plain
meaning of the statutory provisions themselves.
1. Intent of the IIRIRA (as Amended) as Revealed in the Act
Itself. The IIRIRA provides that the actions “as may be necessary
to install additional physical barriers and roads . . . in the vicinity
of the United States border” are “to deter illegal crossings in areas
of high illegal entry into the United States.”30 The Secure Fence
Act of 2006 labels itself as “An Act [t]o establish operational control
over the international land and maritime borders of the United
States.”31 Furthermore, the act defines “Operational control” as
“the prevention of all unlawful entries into the United States,
including entries by terrorists, other unlawful aliens, instruments
of terrorism, narcotics, and other contraband.”32 Thus, it appears
the legislature’s intentions became more stringent with the
passage of the Secure Fence Act of 2006; the original deterrence of
illegal border crossings into the United States became an absolute
prevention and the original focus on areas of high illegal entry into
the United States was widened to encompass all unlawful entries
into the United States.
2. Analyzing the Purpose of the IIRIRA (as Amended)
Against the Federal Power to Regulate Naturalization. The
Constitution gives the federal government the power to regulate
how foreigners may become citizens of the United States.33 The
connection with interstate commerce and therefore was unconstitutional. United States v.
Lopez, 514 U.S. 549, 562–63 (1995). The Court relied at least in part upon the fact that
Congress’ stated intent, both in the body of the Act itself and in the legislative committee
reports made no mention of the relevance of gun possession in school zones to interstate
commerce. Id. As neatly summed up by Justice Kennedy, “neither the purposes nor the
design of the statute has an evident commercial nexus.” Id. at 580 (Kennedy, J.,
concurring). The provision at issue in the GFSZA was then amended by Congress to include
a “‘jurisdictional element which would ensure . . . that the firearm possession in question
affects interstate commerce.’” United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005).
Subsequently, two courts of appeals found the amended statute thereby to be constitutional.
Id.; United States v. Danks, 221 F.3d 1037, 1038–39 (8th Cir. 1999), cert. denied, 528 U.S.
1091 (2000).
30. IIRIRA § 102(a), 110 Stat. at 3009–554 (codified as amended at 8 U.S.C. § 1103
note 102(a) (Improvement of Barriers at Border)).
31. Secure Fence Act of 2006, Pub. L. No. 109–367, 120 Stat. 2638, 2638 (emphasis
added).
32. Id. § 2(b) (codified as amended at 8 U.S.C. § 1701 note (Achieving Operational
Control on the Border)) (emphasis added).
33. U.S. CONST. art. I, § 8, cl. 4 (“The Congress shall have Power . . . [t]o establish an
56 Hous. L. Rev. 635 (2019)
644 HOUSTON LAW REVIEW 56:3
U.S. Supreme Court has held that this power logically includes the
power to regulate immigration.34 Given that the Secure Fence Act
of 2006 seeks to achieve “the prevention of all unlawful entries into
the United States,”35 and the Constitution does not identify limits
to levels of immigration, illegal or otherwise,36 the statute’s stated
intent to prevent all unlawful entries into the United States
correlates to the federal government’s enumerated power to
regulate naturalization.
3. Comparing the IIRIRA (as Amended) with the Federal
Power to Regulate Commerce with Foreign Countries. The
Constitution provides the federal government with the power to
regulate commerce with foreign countries.37 This regulation of
commerce includes the power to prevent items dangerous to the
health and welfare of the general public from entering the
commerce stream.38 The federal government recognizes the need
to regulate the traffic of controlled substances that are potentially
dangerous to the health and well-being of the general public.39
Therefore, the stated intent of the Secure Fence Act of 2006 to
prevent the unlawful entry of narcotics into the United States
correlates to the federal government’s enumerated power to
regulate commerce with foreign nations.
4. Examining Whether the Waiver Provision is Consistent
with the Accepted Domains of the Legislative and Executive
Branches. In examining the constitutionality of the waiver
provision contained within the REAL ID Act, the United States
District Court for the District of Columbia in Defenders of Wildlife
uniform Rule of Naturalization . . . .”).
34. Arizona v. United States, 567 U.S. 387, 394–95 (2012) (“The Government of the
United States has broad, undoubted power over the subject of immigration and the status
of aliens. . . . This authority rests, in part, on the National Government’s constitutional
power to ‘establish an uniform Rule of Naturalization,’ Art. I, § 8, cl. 4, and its inherent
power as sovereign to control and conduct relations with foreign nations.”).
35. § 2(b), 120 Stat. at 2638 (codified as amended at 8 U.S.C. § 1701 note (Achieving
Operational Control at the Border)).
36. U.S. CONST. art. I, § 8, cl. 4.
37. Id. art. I, § 8, cl. 3 (“The Congress shall have Power . . . [t]o regulate Commerce
with foreign Nations . . . .”).
38. United States v. Darby, 312 U. S. 100, 114 (1941) (“Congress . . . is free to exclude
from the commerce articles whose use in the states for which they are destined it may
conceive to be injurious to the public health, morals or welfare . . . .”).
39. See, e.g., 21 U.S.C. § 801 (2)−(3) (2012) (“The illegal importation, manufacture,
distribution, and possession and improper use of controlled substances have a substantial
and detrimental effect on the health and general welfare of the American people. . . . A
major portion of the traffic in controlled substances flows through interstate and foreign
commerce.”).
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2019 POWER OF EMINENT DOMAIN 645
v. Chertoff identified the accepted practice of the Legislative
Branch of government to delegate decision-making to the
Executive Branch in areas where the Executive Branch has
considerable discretion.40 The court made specific reference to the
fact that the waiver provided in the REAL ID Act related to
“foreign affairs and immigration control—another area in which
the Executive Branch has traditionally exercised a large degree of
discretion.”41 Thus, the court concluded that the waiver did not
offend established principles concerning such delegations of
power.42
C. Conclusions
The stated intent of the IIRIRA, as amended, to prevent “all
unlawful entries into the United States,” including entries by
terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband, corresponds with the federal
government’s Constitutional power to regulate immigration and to
regulate commerce with foreign nations.43 Furthermore, the
waiver provision, despite its broad scope, does not violate the
precedential line of U.S. Supreme Court cases that define the legal
standards of such delegations of power.44 Therefore, it appears
that the provisions of the IIRIRA, as amended, are
Constitutionally sound.
To the extent that the statutory provisions of the IIRIRA were
enacted according to constitutionally-enumerated powers,45 this
Comment analyzes the legal landscape concerning a federal
40. 527 F. Supp. 2d 119, 126 (D.D.C. 2007).
41. Id.
42. Id. at 127−28 (“[T]his Court cannot agree that the REAL ID Act’s waiver provision
constitutes an impermissibly standardless delegation. This conclusion is also in accord with
the only other decision to address the question of whether the REAL ID Act’s waiver
provision is a constitutional delegation. In that case, the district court upheld the waiver
provision, finding that ‘[a]pplying a standard of “necessity” to Congress’ delegation of
authority passes constitutional muster.’” (citing Sierra Club v. Ashcroft, No. 04CV0272-
LAB (JMA), 2005 U.S. Dist. LEXIS 44244, at *21 (S.D. Cal. Dec. 12, 2005))). The court also
explained that an acceptable delegation of power by Congress to the Executive Branch
provides an “intelligible principle” of the general policy plus the boundaries of the delegated
authority within which the actions of the relevant agency of the Executive Branch must
remain. Id. at 127.
43. See supra Sections II.B.2 and Section II.B.3.
44. See supra Section II.B.4.
45. Any deeper analysis on the constitutionality of the IIRIRA (as amended) itself,
and particularly the waiver provision, is outside the scope of this Comment. For further
review on these aspects see generally Defenders of Wildlife, 527 F. Supp. 2d at 124−26
(distinguishing the waiver provision from the Line Item Veto Act that was found
unconstitutional in Clinton v. City of New York, 524 U.S. 417, 421 (1998)). See also Neeley,
supra note 13, at 150–61.
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646 HOUSTON LAW REVIEW 56:3
governmental condemnation of state-owned lands pursuant to the
IIRIRA, as amended. Next, in Part III, this Comment discusses
how the Texas state government may be constrained by its own
laws to acquiesce to such federal actions. Parts IV and V then
examine the constitutional bases under which the federal
government may legitimately exercise a power of eminent domain
over the states.
III. TEXAS STATE LEGISLATIVE PROVISIONS CONCERNING THE
FEDERAL GOVERNMENT’S EXERCISE OF EMINENT DOMAIN POWER
A. The Extent of Statutory Consent to the Federal Government’s
Exercise of Eminent Domain in Texas
1. Interpretation of the Current Texas “Consent” Statute.
Subchapter B of the Texas Government Code authorizes the
Governor of the state of Texas to sell state-owned lands to the
federal government of the United States for certain purposes.46
These purposes are explicitly referenced as being “specified by
Section 2204.101.”47 Section 2204.101 provides that these
purposes are the erection and maintenance of
[1] a lighthouse, fort, military station, magazine, arsenal, dockyard, customhouse, post office, or other necessary public building; or
(2) for erecting a lock or dam, straightening a stream by making a cutoff, building a levee, or erecting any other structure or improvement that may become necessary for developing or improving a waterway, river, or harbor of this state.48
This section further provides consent by the Texas legislature “to
the purchase or acquisition by the United States, including
acquisition by condemnation, of land in this state made in
accordance with this subchapter.”49 This explicit consent for the
United States to acquire land for these purposes is conditioned on
the federal government (i) considering the land acquisition to be
expedient, and (ii) seeking to occupy that land as a site.50
In applying the statute to the federal government’s
acquisition of state-owned land for the border wall, one question of
46. TEX. GOV’T CODE ANN. § 2204.102(a).
47. Id.
48. Id. § 2204.101(b)(1)–(2).
49. Id. § 2204.101(a).
50. Id. § 2204.101(b).
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2019 POWER OF EMINENT DOMAIN 647
interpretation is whether the border wall qualifies as an “other
necessary public building.” However, although it appears by plain
reading that Texas consents to the federal government’s use of
condemnation power only in specific circumstances for a limited
list of prescribed activities, the Texas Attorney General’s Office
subscribes to a broader view.51 The Office has effectively eschewed
the textual canon of expressio unius est exclusio alterius by
concluding that the lack of any express withholding of consent by
the state legislature for the federal government to acquire land in
Texas for any other purpose meant that the state of Texas
acknowledged that the federal government already possesses the
right to acquire land in Texas for any public purpose.52 Although
the statute does not provide specific consent for federal land
acquisition to build the border wall,53 the apparent prevailing
modus operandi of the Texas Attorney General’s Office effectively
renders moot an examination of the meaning of “other necessary
public building” and whether the border wall falls within the scope
of this phrase.54
2. The Current Statute Viewed in Light of Judicial
Interpretations of Previous Versions. The current 1993 statute
providing consent for federal government acquisition of lands
within the state of Texas is a recodification without substantial
amendment of pre-existing state laws.55 Previous incarnations of
these laws had been (re)codified in 1925,56 1911,57 and 1895.58
51. Tex. Att’y Gen. LO-96-122 (1996).
52. Id.; Expressio unius est exclusio alterius, BLACK’S LAW DICTIONARY (10th ed. 2014)
(“A canon of construction holding that to express or include one thing implies the exclusion
of the other, or of the alternative.”).
53. GOV’T § 2204. 101(b)(1)−(2).
54. Such an analysis is included infra Part V of this Comment with respect to the
Enclave Clause of the Constitution. U.S. CONST. art. I, § 8, cl. 17. One may postulate that
the interpretation of this statute provided by the Texas Attorney General’s Office is
inappropriate because it arguably renders this part of the statute meaningless. If the
federal government already possesses a power to do something—whether or not a state
consents—then what purpose does the state statute providing consent actually serve?
There is no need for a state to statutorily acknowledge a constitutionally-enumerated power
of the federal government. However, as discussed infra Section V.C, this consent is relevant
with respect to the Enclave Clause of the Constitution in establishing the right of the
federal government to obtain exclusive jurisdiction over lands acquired from a state.
Moreover, the analysis in infra Part IV also shows why the interpretation by the Texas
Attorney General’s Office might be reasonable.
55. S. Comm. on Admin., Bill Analysis, Tex. S.B. 248, 73d Leg. R. S. (Tex. 1993); Tex.
House Comm. on St. Aff. Minutes 18−19, 73d Leg., R.S. (Apr. 28, 1993).
56. 1925 TEX. REV. CIV. STAT. ANN. art. 5242−48.
57. 1911 TEX. REV. CIV. STAT. ANN. art. 5252−77.
58. 1895 TEX. REV. CIV. STAT. ANN. art. 361−76. Interestingly, reference is made to
the “eighteenth clause of the eighth section of the first article of the constitution of the
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648 HOUSTON LAW REVIEW 56:3
These previous versions have been subject to analysis by Texas
courts. In Curry v. State, the Texas Court of Criminal Appeals
examined the 1895 statute and concluded that consent by the state
legislature was unnecessary for the federal government to acquire
title to lands within the state.59 The Court found persuasive an
earlier opinion by the Supreme Court of Michigan that had
reached the same conclusion as part of its analysis of the
acquisition of private lands by a state for the purpose of
transferring those lands to the federal government.60 The
conclusion in Curry was cited with approval by a Texas Court of
Civil Appeals in Dodson v. Home Owners’ Loan Corporation in its
review of the 1925 version of the statute.61 Therefore, the broad
consent opined by the Texas Attorney General’s Office appears not
to be directly contradicted by the courts’ historical interpretations
of the statute. This implies that removing Texas’s statutory
automatic consent to federal government seizure of lands for the
border wall can be achieved only through legislative action.
3. Remaining Portions of the Current “Consent” Statute.
The remainder of the statute providing consent for federal
acquisition of Texas state lands details situations not necessarily
relevant to the border wall with respect to Big Bend Ranch State
Park. Subchapter C concerns state-owned land under the control
of the Texas Department of Transportation.62 Big Bend Ranch
State Park is under the control of the Texas Parks & Wildlife
Department, hence the provisions of this subchapter are not
applicable here.63 Subchapter D relates to provisions for federal
flood control projects on the Rio Grande (and other rivers) that
stem from a 1944 treaty between the United States and Mexico
United States . . . .” Id. art. 361. This clause is the Necessary and Proper Clause. U.S.
CONST. art. I, § 8, cl. 18 (“The Congress shall have Power . . . [t]o make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers . . . .”). This
appears to acknowledge that the list of purposes provided in the statute is more extensive
than that provided in the Enclave Clause. See id. art. I, § 8, cl. 17 (listing “Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings”). Reference to the Necessary and Proper
Clause was dropped in subsequent revisions. See, e.g., 1911 REV. CIV. STAT. art. 5252.
59. Curry v. State, 12 S.W.2d 796, 798 (Tex. Crim. App. 1928).
60. Id. (citing People ex rel. Trombley v. Humphrey, 23 Mich. 471 (1871)); Humphrey,
23 Mich. at 479 (“We think counsel is in error in supposing that the assent of the state is a
condition precedent to the taking of lands by the general government. Its consent is
required only for the purpose of a transfer of jurisdiction.”).
61. Dodson v. Home Owners’ Loan Corp., 123 S.W.2d 435, 436 (Tex. Civ. App.—El
Paso 1938, no writ).
62. GOV’T § 2204.201.
63. See supra Part I and text accompanying note 9.
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2019 POWER OF EMINENT DOMAIN 649
concerning river water usage.64 Since the border wall is unrelated
to such flood control projects this subchapter is irrelevant to the
focus of this Comment. Subchapter E represents the provision of
consent to the federal government to acquire—or gain an
easement for access to—the bed and banks of the Rio Grande to
implement measures according to a 1972 treaty between the
United States and Mexico that resolved issues over the location of
the international boundary between those nations.65 The projects
provided in the statute are specific to maintenance of the course of
the Rio Grande and therefore are not related to the border wall.66
The other remaining subchapters either concern acquisition of
land by the state of Texas itself or federal acquisition of specific
state lands that lie outside the Rio Grande area.67 Only the
provisions of Subchapter B are relevant to federal acquisition of
state lands for the border wall in the Big Bend area; therefore, the
broad statutory consent for such acquisition provided therein is
unimpeded by any other statutory provisions.
B. The Likely Effect if Bill S.C.R. 31 is Passed
Bill S.C.R. 31 was referred to the Committee on State Affairs
in March 2017 and, as of January 2019, has not progressed any
further.68 Even if it does pass, it is unclear whether this bill will
have any practical effect. The Bill merely expresses specific
opposition to the use of eminent domain for border wall
construction69 and therefore would be inconsequential should the
federal government avoid the use of eminent domain to acquire
land, or access to land, for the border wall. Passing the Bill might
create conflict with the current Texas statute granting consent to
federal land acquisitions;70 however, as discussed in Part IV, such
conflict would likely be moot given the federal government’s
64. GOV’T § 2204.301.
65. Id. § 2204.401.
66. Id.
67. Id. §§ 2204.001, .501, .601, .701.
68. S. J. of Tex., 85th Leg. R. S.545 (2017) (showing that Bill S.C.R. was referred to
the Committee on State Affairs in March 2017). The latest status is reported on the official
website of the Texas Legislature. History of Bill S.C.R 31 of 85th Regular Session, TEX.
LEGISLATURE ONLINE, http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=85R
&Bill=SCR31 [https://perma.cc/3H9P-6MET] (last visited Jan. 20, 2019).
69. Tex. S. Con. Res. 31, 85th Leg. R. S. (2017).
70. Compare id. (“RESOLVED, That the 85th Legislature of the State of Texas hereby
express its opposition to using eminent domain for the construction of a wall or fence along
the U.S.-Mexico border. . . .”) with GOV’T § 2204.101(a) (“The legislature consents to the
purchase or acquisition by the United States, including acquisition by condemnation, of
land in this state. . . .”).
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650 HOUSTON LAW REVIEW 56:3
supreme power of eminent domain.71 Therefore, passing this Bill
would not achieve any practical results, bar the mere expression
of opposition.
C. The Effectiveness of a State’s Consent to Unconstitutional
Federal Actions
As argued by Philip Hamburger, a state’s consent to an
unconstitutional federal action does not necessarily bring that
action within constitutional limits.72 Hamburger further argues
that “[the Constitution’s] limits are not alterable by private or
state consent, but only by the consent of the people.”73
Nevertheless, in distinguishing constitutional rights from private
rights, Hamburger concedes that property rights “can be waived
or forfeited, whether by individuals, institutions, or states.”74 Thus
Hamburger recognizes that although a property right may be
unilaterally relinquished, a relinquishment of that property right
does not affect the constitutionality of the ensuing activity or
action even though this may be done to allow an activity or action
that is unconstitutional. Indeed, the U.S. Supreme Court has
recognized the requirement that a federal action must be within
the scope of the Constitution in order for consent by the relevant
state to be effective.75
D. Brief Hypothetical: Potential Ramification of an
Unconstitutional Condemnation of State Lands by the
Federal Government with the State’s Consent
This purely hypothetical scenario envisages federal
government condemnation of specific state-owned lands somehow
outside its constitutionally-enumerated powers achieved with the
consent of the state. In a legal challenge, who would have standing
as a plaintiff? First, the putative plaintiff must be able to
demonstrate a cognizable injury caused by the defendant that can
probably be remedied by a court.76 In the case at issue in this
71. See infra Part IV.
72. Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98
VA. L. REV. 479, 485, 487−88 (2012) (noting that it “is notorious that the cases on
unconstitutional conditions are poorly conceptualized and consequently are hesitant,
inconsistent, and confusing”).
73. Id. at 483.
74. Id. at 484.
75. See, e.g., New York v. United States, 505 U.S. 144, 182 (1992) (“Where Congress
exceeds its authority relative to the States, therefore, the departure from the constitutional
plan cannot be ratified by the ‘consent’ of state officials.”).
76. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61 (1992).
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2019 POWER OF EMINENT DOMAIN 651
Comment—the construction of a border wall in Big Bend Ranch
State Park—the injured party would be arguably the state of
Texas as a whole, and yet, it is the very state (in this hypothetical)
that statutorily consents to federal government action to build a
border wall on state lands. Second, assuming Texas does not file
suit against the federal government, a third party plaintiff must
establish that the grievance suffered by that plaintiff is not
generalized—i.e., the plaintiff’s purported injury must not be
shared across an unrepresented class.77 If the state itself does not
file suit, then it could be difficult to identify a suitable plaintiff
because of these issues of standing.
Notwithstanding the complexities of such a scenario, an
examination of the constitutionality of federal government actions
is relevant and necessary even if (in this case) the state of Texas
statutorily or otherwise grants broad consent for those actions.
E. Conclusions
Current Texas law broadly consents to federal government
acquisition of state-owned land for the purpose of constructing a
border wall.78 Should Bill S.C.R. 31 be passed, the bill could
conflict with existing law, though specifically only with respect to
the federal government use of eminent domain to acquire land, or
access to land, for the construction of the border wall.79 However,
such conflict would likely be moot in light of the federal
government’s supreme power of eminent domain.80 Nevertheless,
a determination that the federal government’s actions in this
regard are unconstitutional would negate the effectiveness of the
state’s consent.81 Although it might be difficult to establish a
suitable plaintiff in such a circumstance, it is relevant to examine
the federal government exercise of eminent domain power.82
77. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 487 (1923) (indicating that the
grievance of a single taxpayer against a tax code that affected many people was “so remote,
fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers
of a court of equity”). By analogy, the construction of the border wall—including specifically
in Big Bend Ranch State Park—would adversely affect the pleasure gained by the many
people who visit the area to revel in its natural beauty, and thus this would appear to be a
generalized grievance.
78. See supra Section III.A.
79. See supra Section III.B.
80. See supra Section III.B.
81. See supra Section III.C.
82. See supra Section III.D.
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IV. FEDERAL POWER OF EMINENT DOMAIN AGAINST THE STATES
AND THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT
A. Summary of Federal Condemnation Processes
There are four ways in which the federal government can
exercise its power of eminent domain.83
The first way is when an authorized officer of the federal
government initiates a judicial process that is conducted through
the Attorney General.84 The court conducts a hearing and fixes an
appropriate amount of compensation,85 following which the
government decides whether to proceed with the acquisition.86
The second way involves a more direct judicial process in
which a “declaration of taking” is filed in court.87 Here, title
immediately vests in the federal government when both the filing
and a deposit of funds amounting to the estimated value of the
land are made.88 The land owner receives the deposit of funds as
compensation; the amount may be adjusted later upon the final
decision of the court and the resulting deficiency or surplus is then
credited to the relevant party.89
A third way in which the federal government can exercise its
power of eminent domain is when Congress passes legislation
specifying the taking and establishing the procedure for
determining the compensation.90
Finally, the federal government may obtain physical
possession of the land, thereby ousting the owner.91 Absent either
a court order or the initiation of condemnation proceedings, the
federal government does not, by physical possession alone,
immediately acquire title to the land. Subsequent tribunal
proceedings look to the date of physical possession as the date
upon which to determine compensation.92
The IIRIRA, as amended by the Department of Homeland
Security Appropriations Act of 2008, provides that the Secretary
of Homeland Security may initiate condemnation proceedings if
83. 26 AM. JUR. 2D Eminent Domain § 18 (2017).
84. 40 U.S.C. § 3113 (2012).
85. FED. R. CIV. P. 71.1(h).
86. See, e.g., Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 4 (1984).
87. 40 U.S.C. § 3114(a) (2012); Kirby Forest, 467 U.S. at 4.
88. § 3114(b)(1); Kirby Forest, 467 U.S. at 4–5.
89. FED. R. CIV. P. 71.1(j)(2).
90. Kirby Forest, 467 U.S. at 5.
91. Id.
92. See, e.g., Best v. Humboldt Placer Mining Co., 371 U.S. 334, 340 (1963) (citing
United States v. Dow, 357 U.S. 17, 21–22 (1958)).
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2019 POWER OF EMINENT DOMAIN 653
there is no agreement with the landowner over a reasonable price
for the land interest being acquired by the federal government.93
This places a requirement on the federal government to first enter
into some form of negotiation with a landowner over the amount
of compensation before resorting to condemnation proceedings if
the parties fail to agree.94 Whilst the government is required to
make a genuine attempt to reach an agreement with a landowner,
there is no particular prescribed procedure for doing so.95
Nevertheless, the statutory burden is on the federal government
to demonstrate that it has made a genuine attempt to reach an
agreement with the landowner over the amount of compensation
before instigating condemnation proceedings.96
The second way is the most likely method should the federal
government resort to the power of eminent domain to access Big
Bend Ranch State Park for the construction of the border wall
because it does not require the government to negotiate with the
opposing party prior to acquisition.
B. The Federal Power of Eminent Domain and the Takings
Clause of the Fifth Amendment
At first look, the Takings Clause of the Fifth Amendment to
the Constitution does not appear to be relevant to the states
because it specifies the taking of private property (without just
compensation).97 However, the U.S. Supreme Court plugged that
apparent gap in the Constitution by indicating that this clause
also covers state-owned land subject to condemnation by the
federal government.98 The Court has observed that the Takings
93. Consolidated Appropriations Act, 2008, Pub. L. 110-161, div. E, tit. V, sec. 564,
§ 102, 121 Stat. 1844, 2090–93 (2007) (codified as amended at 8 U.S.C. § 1103(b)(3) (2012));
40 U.S.C. § 3113 (2012) (“The Attorney General, on application of the [federal] officer, shall
have condemnation proceedings begun within 30 days from receipt of the application at the
Department of Justice.”); see supra note 19 (discussing substitution of “Attorney General”
to “Secretary of Homeland Security”).
94. See, e.g., United States v. 1.04 Acres of Land, 538 F. Supp. 2d 995, 1010 (S.D. Tex.
2008).
95. See id. at 1010 n.9.
96. See id. at 1012 (“The Government is required . . . to put forth a bona fide effort to
determine whether an agreement can be reached. The United States must provide this
Court with sufficient evidence for it to determine that the Government has made a bona
fide effort to negotiate with [the landowner] for this interest in her land.”).
97. U.S. CONST. amend. V (“[N]or shall private property be taken for public use,
without just compensation”) (emphasis added).
98. See United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984) (“[I]t is most
reasonable to construe the reference to ‘private property’ in the Takings Clause of the Fifth
Amendment as encompassing the property of state and local governments when it is
condemned by the United States.” (citing United States v. Carmack, 329 U.S. 230, 242
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654 HOUSTON LAW REVIEW 56:3
Clause presupposes an existing power of eminent domain rather
than granting a new power to the federal government.99 This
comports with a policy rationale vindicating federal use of eminent
domain over state-owned lands expressed by the U.S. Supreme
Court in 1875.100 In Kohl v. United States, the Court reasoned that
the functioning of the federal government necessitates a right for
it to acquire land from the states and that the federal government
should not rely upon the states to function.101 The Court’s dicta
further emphasized the absolute sovereign power of the federal
government over the states in the exercise of eminent domain.102
The Supremacy Clause of the Constitution provides for
federal eminent domain power that outweighs the power of the
states themselves.103 The federal power of eminent domain even
applies to state lands that are already being used for a public
purpose.104 In United States v. Carmack, the federal government
sought to condemn land for the construction of a post office and
customhouse in the city of Cape Girardeau, Missouri.105 The
targeted land included part of a public park and a county
courthouse building.106 This land was private land held in trust by
the city for existing public purposes.107 The U.S. Supreme Court
found the existing status of the land to be immaterial to the
question of whether or not the federal government was entitled to
implement its power of eminent domain.108 Furthermore, the
Court opined that the Supremacy Clause makes “it appropriate to
(1946))).
99. See Carmack, 329 U.S. at 241–42.
100. Kohl v. United States, 91 U.S. 367, 371–74 (1875).
101. Id. at 371, 372 (“Neither [the federal government nor state government] is under
the necessity of applying to the other for permission to exercise its lawful powers.”).
102. Id. at 374 (“If the United States have the power, it must be complete in itself. It
can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner
in which it must be exercised. The consent of a State can never be a condition precedent to
its enjoyment.”).
103. See, e.g., United States v. 32.42 Acres of Land, 683 F.3d 1030, 1034 (9th Cir. 2012)
(“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land . . . .” (citing U.S. CONST., art. VI, cl. 2));
Carmack, 329 U.S. at 240; Stockton v. Baltimore & N.Y.R. Co., 32 F. 9, 19 (C.C.D.N.J. 1887)
(“If it is necessary that the United States government should have an eminent domain still
higher than that of the state, in order that it may fully carry out the objects and purposes
of the constitution, then it has it.”); 26 AM. JUR. 2D Eminent Domain, supra note 83, at § 19.
104. See 329 U.S. at 238–39.
105. Id. at 232.
106. Id. at 233–34.
107. Id. at 238–39.
108. Id. at 239 (“It makes little difference that the site here sought to be condemned is
held by the City in trust instead of in fee.”).
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recognize that the power of eminent domain, when exercised by
Congress within its constitutional powers, is equally supreme.”109
Even though the federal government has the power to
condemn state-owned lands for a public use, it must still fulfill the
constitutional requirement to provide appropriate
compensation.110 The question of whether the border wall satisfies
the “public use” requirement likely would not be challenged by the
state of Texas.111 Thus, it appears that a potential challenge to
federal government use of eminent domain to acquire land for the
border wall in the Big Bend area would hinge on whether the
federal government has provided “just compensation.” Note,
however, that this would be a challenge not against the federal
government eminent domain power itself, but against the level of
compensation due to the landowner for the taking.
C. Limitations to Opposing Condemnation by the Federal
Government
Although the federal government power of eminent domain is
supreme, a landowner may challenge a taking as exceeding the
bounds of statutory authority.112 Such a challenge, however, does
not address such questions as the necessity or expediency of the
condemnation proceeding because these decisions lie within the
decision-making powers that are delegated to the relevant
government department.113 Therefore, the only issue that is
subject to review is “the bare issue of whether the limits of
109. Id. at 240.
110. Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 291 (1983)
(indicating that it is “probably” correct that a congressional law that deprived “a State of
land vested in it by the Constitution” without a compensation payment provision “would
constitute a taking of the State’s property without just compensation, in violation of the
Fifth Amendment”).
111. See Tom Benning, Eminent Domain for Trump’s Border Wall is Fine, Says Texas
Attorney General Ken Paxton, DALL. MORNING NEWS (Mar. 27, 2017),
https://www.dallasnews.com/news/texas-politics/2017/03/27/texas-attorney-general-backs-
trumps-plan-use-eminent-domain-border-wall [https://perma.cc/QE3E-B5NV] (reporting
that the Texas Attorney General accepts that the border wall satisfies the Fifth
Amendment’s “public use” requirement).
112. See, e.g., United States v. 1.04 Acres of Land, 538 F. Supp. 2d 995, 999 (S.D. Tex.
2008) (“The sole defense to a condemnation action is that the United States lacks the
authority to take the interest sought in the complaint in condemnation. . . . A property
owner’s challenge to a condemnation action is properly defined as an objection to the
validity of the taking for ‘departure from the statutory limits.’” (first citing United States
v. 162.20 Acres of Land, 639 F.2d 299, 303 (5th Cir. Unit A Aug. 1981); and then quoting
Catlin v. United States, 324 U.S. 229, 240 (1945)).
113. See 162.20 Acres of Land, 639 F.2d at 303 (citing United States v. 2,606.84 Acres
of Land, 432 F.2d 1286 (5th Cir. 1970), cert. denied, 402 U.S. 916 (1971)).
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656 HOUSTON LAW REVIEW 56:3
authority [are] exceeded.”114 The applicable standard presents a
high threshold—that “no reasonable man” could conclude
otherwise—to demonstrate that the government was acting
outside its statutory remit.115 When the intended purpose of the
taking is valid, “the necessity of the taking and the character of
the title to be taken are decisions vested exclusively in the
Secretary,” and thus not subject to judicial review.116 As
exemplified by United States v. 1.04 Acres of Land, a challenge
asserting that the federal government exceeded its authority in its
exercise of eminent domain power concerning the border wall
where the land at issue lies at or near the border will likely result
merely in a delay of the inevitable acquisition of that land.117
D. The Tenth Amendment as a Challenge to Appropriate Federal
Use of Eminent Domain
The Tenth Amendment highlights the division of
constitutional powers between the federal government and the
states (and the people).118 Rather than modifying the distribution
or extent of powers originally provided in the Constitution, the
Tenth Amendment merely explicitly acknowledges the state of
affairs at the time the Constitution was accepted by the people of
the United States.119 In addition to alleviating any doubt over this
matter, one accepted purpose of the Tenth Amendment was to
placate people who were concerned that the fledgling federal
government might be tempted to overreach its delegated
114. Id.
115. See 2,606.84 Acres of Land, 432 F.2d at 1290 (“[Government action outside its
statutory remit] would occur if the delegated official so overstepped his authority that no
reasonable man could conclude that the land sought to be condemned had some association
with the authorized project. In such a case alone could the taking be considered arbitrary or
capricious as those terms are used in condemnation proceedings. There must be basic to
the project pervasive deception, unreasoned decision, or will-of-the-wisp determination
before these words of pejoration are brought into play.” (emphasis added)).
116. Id. at 1289 (quoting West, Inc. v. United States, 374 F.2d 218, 222 (5th Cir. 1967)).
117. 1.04 Acres of Land, 538 F. Supp. 2d 1012 (“The Court will . . . give the Government
two weeks from the entry of this order . . . to either: (1) supplement its proof or (2) conduct
good faith negotiations with [the landowner], . . . and supplement its pleadings. After that
date the Court will proceed to rule on the merits of this aspect of the Government’s petition
for relief.”).
118. U.S. CONST. amend. X (“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or
to the people.”).
119. See United States v. Sprague, 282 U.S. 716, 733 (1931) (“The Tenth Amendment
was intended to confirm the understanding of the people at the time the Constitution was
adopted, that powers not granted to the United States were reserved to the states or to the
people. It added nothing to the instrument as originally ratified . . . .”).
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powers.120 Contemporary writings by Alexander Hamilton—one of
the framers of the Constitution—support the view that the
Constitution had been carefully written so as to provide a discrete
set of powers to the federal government and reserve all other
rights to the states.121 Nevertheless, when the federal government
acts properly within its Constitutionally-delegated powers, the
Tenth Amendment does not provide a way by which the states may
somehow impede federal government actions.122 Hence, the federal
government may operate freely within the scope permitted by the
Constitution even though the states may retain some degree of
sovereignty.123
The case of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.
demonstrates the (im)balance of power between federal and state
governments.124 Congress enacted a plan (referred to as “the Act”
in this sub-Part) to dam a section of the Red River in order to
provide flood control for the Mississippi River and hydroelectric
power for Denison, Texas.125 The Red River divides the states of
Oklahoma and Texas along part of its course.126 The state of
Oklahoma claimed that construction of the dam would result in
the flooding of 100,000 acres of land within the state, necessitating
the displacement of Oklahoma citizens and resulting in significant
120. See United States v. Darby, 312 U.S. 100, 124 (1941) (“There is nothing in the
history of its adoption to suggest that it was more than declaratory of the relationship
between the national and state governments as it had been established by the Constitution
before the amendment or that its purpose was other than to allay fears that the new
national government might seek to exercise powers not granted, and that the states might
not be able to exercise fully their reserved powers.”).
121. See THE FEDERALIST No. 32, at 155, 158 (Alexander Hamilton) (Ian Shapiro ed.,
2009) (“[Because] the plan of the convention aims only at a partial union or consolidation,
the State governments would clearly retain all the rights of sovereignty which they before
had, and which were not, by that act, exclusively delegated to the United States. . . .
[N]otwithstanding the affirmative grants of general authorities, there has been the most
pointed care in those cases where it was deemed improper that the like authorities should
reside in the States, to insert negative clauses prohibiting the exercise of them by the
States.”).
122. See Darby, 312 U.S. at 124 (“[The Tenth Amendment does] not depriv[e] the
national government of authority to resort to all means for the exercise of a granted power
which are appropriate and plainly adapted to the permitted end.” (first citing Martin v.
Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 324–25 (1816); then citing McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 405–06 (1819); then citing Gordon v. United States, 117 U. S. 697,
705 (1864); then citing Champion v. Ames, 188 U.S. 321, 357 (1903); then citing N. Sec. Co.
v. United States, 193 U.S. 197, 344–45 (1904); then citing Everard’s Breweries v. Day, 265
U.S. 545, 558 (1924); then citing United States v. Sprague, 282 U. S. 716, 733 (1931); and
then citing United States v. The William, 28 F. Cas. 614, 622 (D. Mass. 1808) (No. 16,700)).
123. See Darby, 312 U.S. at 124.
124. 313 U.S. 508 (1941).
125. Id. at 518–20.
126. Id. at 520.
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658 HOUSTON LAW REVIEW 56:3
detrimental economic impacts on Oklahoma.127 The Act included
the transfer of title of the flooded lands to the federal
government.128 The state of Oklahoma contended that the
damaging impacts on the state, including its enforced loss of
territory, rendered the Act in violation of the Tenth
Amendment.129 However, the U.S. Supreme Court found the Act to
be a valid exercise of federal power under the Commerce Clause.130
The Court reasoned that because flooding the Mississippi River
had a detrimental effect on interstate commerce and the project
prescribed by the Act was aimed at mitigating that flooding, the
project was authorized under the commerce power of the federal
government.131 This was so even though the Red River itself was
not navigable in the area where the damming project was set to be
carried out.132 Hence, the Court found that this federal action was
justified under the Constitution and not hindered by the Tenth
Amendment.133 Therefore, state ownership of affected lands
subject to condemnation by the federal government does not in
itself impede the federal power of eminent domain.134
E. Conclusions
Prior to initiating condemnation proceedings to acquire land
(or access to land) for the construction of the border wall, the
federal government bears a statutory burden to demonstrate that
127. Id. at 511–12 (noting that these claims by the state of Oklahoma specified the
potential loss of 50,000 acres of lands underlain by oil and gas, and because the state gained
a significant portion of its income from taxes on hydrocarbon production, it stood to lose a
“wealth production” of approximately $1,500,000 per year).
128. Id. at 511.
129. Id. at 515.
130. Id. at 516.
131. Id. at 525–26 (“[J]ust as control over the non-navigable parts of a river may be
essential or desirable in the interests of the navigable portions, so may the key to flood
control on a navigable stream be found in whole or in part in flood control on its
tributaries.”). The Court also noted that it has repeatedly recognized that “the exercise of
the granted power of Congress to regulate interstate commerce may be aided by appropriate
and needful control of activities and agencies which, though intrastate, affect that
commerce.” Id.
132. Id.
133. Id. at 534; accord United States v. Appalachian Elec. Power Co., 311 U.S. 377,
428 (1940) (“So long as the things done within the states by the United States are valid
under [the Commerce] power, there can be no interference with the sovereignty of the
state.”).
134. See id. at 534 (“The fact that land is owned by a state is no barrier to its
condemnation by the United States. . . . ‘Whenever the constitutional powers of the federal
government and those of the state come into conflict, the latter must yield.’” (first citing
Wayne County v. United States, 53 Ct. Cl. 417 (1918), aff’d, 252 U.S. 574 (1920); and then
quoting Florida v. Mellon, 273 U.S. 12, 17 (1927))).
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it has first made a bona fide attempt to reach an agreement with
the landowner over the amount of compensation.135 The Takings
Clause of the Fifth Amendment applies to the taking by the federal
government of state-owned land for a public use and implies a pre-
eminent condemnation power that overrides state sovereignty.136
Because the state of Texas concedes that the border wall satisfies
the “public use” requirement of the Fifth Amendment, a viable
challenge to federal government acquisition of land in the Big
Bend area would likely not be against the federal government
eminent domain power itself, but against the level of compensation
due to the landowner as a result of the taking.137 Nevertheless, a
challenge may be brought against the exercise of federal
government condemnation power in the narrow scenario in which
federal government demonstrably acts outside its statutory remit,
though the burden on the challenging party is particularly
stringent.138 Finally, the Tenth Amendment does not alter this
balance of power between the federal government and the states
when the federal government acts appropriately under one of its
constitutional powers.139 Therefore, concerning land in the Big
Bend area, as long as the federal government selects land that is
appropriately located (i.e. not arbitrarily or capriciously) and first
makes a genuine attempt to agree on compensation, there will
likely be no legal barriers to the federal government exercise of its
condemnation power.
V. THE FEDERAL VERSUS STATE BALANCE OF POWER UNDER THE
ENCLAVE CLAUSE WITH RESPECT TO EMINENT DOMAIN
A. Intent of the Enclave Clause
As well as paving the way for founding Washington, D.C. as
the seat of the federal government, the Enclave Clause establishes
exclusive federal jurisdiction “over all Places purchased by the
Consent of the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings[.]”140 This part of the eventual Enclave
135. See supra Section IV.A.
136. See supra Section IV.B.
137. See supra Section IV.B.
138. See supra Section IV.C.
139. See supra Section IV.D.
140. U.S. CONST. art. I, § 8, cl. 17. (“To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of
Particular States, and the Acceptance of Congress, become the seat of the Government of
the United States, and to exercise like Authority over all Places purchased by the Consent
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Clause had originally been proposed as a provision of power for
Congress to “authorise [sic] the Executive to procure and hold for
the use of the United States landed property for the erection of
forts, magazines, and other necessary buildings . . . .”141 This
proposed clause was separate and distinct from other proposed
clauses that provided for the establishment of a seat of
government and exercise of exclusive jurisdiction therein.142 A
later incarnation of the proposed clause was similar to the
eventually-adopted Enclave Clause.143 The addition of the phrase
“by the Consent of the Legislature of the State in which the Same
shall be” after the word “purchased” was made during the Federal
Constitutional Convention of 1787 in response to concerns that the
federal government may procure land for the use of military
installations in order to subjugate unwilling states.144 Thus, there
exists a view that the federal government requires the consent of
the relevant state legislature in order to create a federal enclave.145
of the Legislature of the State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings . . . .”).
141. James Madison, Journal: Saturday August 18, 1787, in 2 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787, at 321, 321 (Max Farrand ed., 1911).
142. Id. at 321–22.
143. Compare U.S. CONST. art. I, § 8, cl. 17 (Congress has the power “to exercise
[exclusive] Authority over all Places purchased by the Consent of the Legislature of the State
in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings . . . .” (emphasis added)), with James Madison, Journal: Wednesday
September 5, 1787, in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 509, 509.
(Congress has the power “to exercise [exclusive] authority over all places purchased for the
erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful buildings . . . .”).
144. Madison, supra note 141, at 505–06 (explaining that the word “purchased” was
added next to “by the consent of the Legislature of the State”); see also Robert G. Natelson,
Federal Land Retention and the Constitution’s Property Clause: The Original
Understanding, 76 U. COLO. L. REV. 327, 354–55, 357 (2005) (showing that before the
Enclave Clause was passed, anti-federalists were mainly concerned about Congress using
military enclaves to undermine the independence of the states from the federal government
and that, in response to their concerns, the Framers specified that the Enclave Clause could
only be used to install military enclaves if states granted permission and that the Enclave
Clause would equalize state and federal powers); Madison, supra note 141, at 510 (“On the
residue, to wit, ‘to exercise like authority over all places purchased for forts &c. Mr. Gerry
contended that this power might be made use of to enslave any particular State by buying
up its territory, and that the strongholds proposed would be a means of awing the State
into an undue obedience to the Genl. Government—Mr. King thought himself the provision
unnecessary, the power being already involved: but would move to insert after the word
“purchased” the words “by the consent of the Legislature of the State” This would certainly
make the power safe. Mr. Govr Morris 2ded. the motion, which was agreed to nem: con: as
was then the residue of the clause as amended.”).
145. See Natelson, supra note 144, at 355. To support this premise, Natelson quotes a
passage from The Federalist No. 43. Id. at 355 n.132 (“And as it [i.e., an enclave] is to be
appropriated to this use with the consent of the State ceding it; as the State will no doubt
provide in the compact for the rights and the consent of the citizens inhabiting it; as the
inhabitants will find sufficient inducements of interest to become willing parties to the
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Further evidence points to an intent for there to be an explicit
requirement that states consent to relinquishing jurisdiction to
the federal government.146 Indeed, the Texas statute concerning
eminent domain (discussed in Part III) contains express provisions
consenting to federal government acquisition of state lands for
certain purposes and consenting to cede jurisdiction to the United
States (as long as certain conditions are met).147 Therefore it
appears that the Enclave Clause may require that states consent
to both the acquisition of lands by the federal government and to
the transfer of jurisdiction to the federal government.148
B. Judicial Construction of the Enclave Clause
The Enclave Clause plays a role in determining the allocation
of jurisdiction over acquired lands; the acquisition of state-owned
lands with concurrent or later-conferred consent by the state will
provide exclusive jurisdiction to the federal government.149
Jurisdiction of the federal government will not be exclusive if the
state does not provide consent.150 Paul v. United States concerned
cession . . . .’” (quoting THE FEDERALIST NO. 43, at 310 (James Madison) (Benjamin Fletcher
Wright ed., 1961))). In the original text, this passage is immediately preceded by the
sentence: “The extent of this federal district is sufficiently circumscribed to satisfy every
jealousy of an opposite nature.” THE FEDERALIST NO. 43, at 310. The “it” at the beginning
of the cited passage likely refers specifically to the “federal district” that was to be created
by cession of lands by the relevant states, and therefore it is unclear whether the reasoning
in the passage is relevant only with respect to the establishment of the seat of government
or to the per se creation of federal enclaves, including those founded for forts, etc.
146. THE FEDERALIST No. 43, supra note 145, at 310 (“The necessity of a like authority
[i.e., exclusive federal jurisdiction,] over forts, magazines, etc., established by the general
government, is not less evident. The public money expended on such places, and the public
property deposited in them, requires that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the security of the entire
Union may depend, to be in any degree dependent on a particular member of it. All
objections and scruples are here also obviated, by requiring the concurrence of the States
concerned, in every such establishment.”).
147. TEX. GOV’T CODE ANN. § 2204.103(a)–(c).
148. Nevertheless, this is somewhat at odds with the prevailing opinions regarding the
Takings Clause of the Fifth Amendment, discussed in Part IV. The acceptance that the
federal government has a general pre-eminent right to acquire state lands by condemnation
is not easily reconciled with a requirement that the federal government obtains consent
from a state to purchase lands for certain purposes. Even the framers of the Constitution
disagreed over this. As discussed above with respect to the evolution of the Enclave Clause,
Mr. Gerry was concerned about the exercise of federal power over the states, whereas Mr.
King opined that the proposed Enclave Clause (without the consent language) was
superfluous (“the power being already involved”)—it documented a power that the federal
government already possessed. See supra text accompanying note 144.
149. See Paul v. United States, 371 U.S. 245, 264 (1963).
150. See id. (“[W]ithout the State’s ‘consent’ the United States does not obtain the
benefits of Art. I, § 8, cl. 17, its possession being simply that of an ordinary proprietor.”
(citing James v. Dravo Contracting Co., 302 U.S. 134, 141–42 (1937))).
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662 HOUSTON LAW REVIEW 56:3
a federal-versus-state jurisdiction dispute over whether the state
of California could enforce its price regulations on milk sold to the
United States at military installations located within the state.151
The Court’s analysis focused on whether or not California had
ceded exclusive jurisdiction to the United States.152 Interestingly,
California had a state statute consenting to federal acquisition of
state lands that was similar to the current equivalent Texas
statute in that it expressly provided consent to federal acquisition
of land by “purchase or condemnation by the United States of any
tract of land within this State for the purpose of erecting forts,
magazines, arsenals, dockyards, and other needful buildings
. . . .”153 The Court concluded that California had yielded exclusive
jurisdiction to the federal government in the case of appropriated
funds under the statute and therefore state price controls that
were in effect at the time of the acquisition would still be
applicable.154
Thus, the focus of the Enclave Clause pertains to a question
of jurisdiction over acquired lands.155 Additionally, current federal
statutes provide that the federal government is not required to
obtain exclusive jurisdiction over acquired land and that it is
“conclusively presumed” that exclusive jurisdiction by the federal
government is not assumed until it is formally accepted according
to a prescribed procedure.156 Furthermore, the U.S. Supreme
Court has made it clear that the Enclave Clause does not affect
the right of the federal government to acquire land by
condemnation from nonconsenting states.157 Therefore,
protagonists looking to the Enclave Clause as a means by which to
curtail the acquisition of land for the border wall would be limited
to arguing over questions of jurisdiction. But that itself may
depend on whether the border wall qualifies as one of the defined
uses for the land as enumerated in the Enclave Clause. This
151. Paul, 371 U.S. at 247–48.
152. Id. at 267–69.
153. Id. at 265 n.31. Compare 1939 Cal. Stat. 2331, with TEX. GOV’T CODE ANN.
§ 2204.103(a).
154. Paul, 371 U.S. at 269.
155. See id. at 264 (citing James, 302 U.S. at 141–42).
156. Thus, the federal government has the option to accept exclusive jurisdiction and
exclusive jurisdiction can be conferred only if the federal government accepts it. 40 U.S.C.
§ 3112(a)–(c) (2012).
157. James, 302 U.S. at 147 (“It is not questioned that the state may refuse its consent
and retain jurisdiction consistent with the governmental purposes for which the property
was acquired. The right of eminent domain inheres in the federal government by virtue of
its sovereignty, and thus it may, regardless of the wishes either of the owners or of the
states, acquire the lands which it needs within their borders.” (citing Kohl v. United States,
91 U.S. 367, 371–72 (1875))).
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question is explored next.
C. The Meaning of “Other Needful Buildings”
The word “needful” in the common vernacular when the
Constitution was adopted meant “necessary.”158 In James v. Dravo
Contracting Co., the U.S Supreme Court “construe[d] the phrase
‘other needful buildings’ as embracing whatever structures are
found to be necessary in the performance of the functions of the
Federal Government.”159 The Court cited examples of “other
needful Buildings” to include a court building, a customs house,
post offices, plus locks and dams.160 The Court rejected a narrow
construction that was based on the doctrine of ejusdem generis on
the policy basis of how the federal government was envisaged to
function.161 However, not discussed in either James or Paul, the
Supreme Court of Appeals of Virginia in Nikis v. Commonwealth
took a narrower construction of “other needful Buildings” in ruling
that a bridge and its approach road were outside the scope.162 Even
if one might be able to reconcile this view with that elucidated in
James, these later U.S. Supreme Court rulings take precedence,
and therefore, the broad construction given in James would apply.
Following the James rationale, the border wall constructed to
regulate immigration and international commerce would be
considered necessary by the government “in the performance of the
functions of the federal government,” just as a dam on a waterway
regulates a highway of interstate commerce.163 Therefore, because
the state of Texas statutorily grants consent to federal acquisition
of land for the border wall, the acquired land would be subject to
exclusive federal jurisdiction if the federal government accepts
exclusive jurisdiction pursuant to the applicable federal statute.
158. See Natelson, supra note 144, at 347, n.98 (“‘Necessary and proper’ are, then,
equivalent to needful and adapted.” (quoting McCullough v. Maryland, 17 U.S. (4 Wheat.)
316, 356 (1819))).
159. James, 302 U.S. at 143.
160. Id. at 142–43 (“Locks and dams for the improvement of navigation, which are as
clearly within the federal authority as post offices, have been regarded as ‘needful
buildings.’ We take that view.” (citing United States v. Tucker 122 F. 518, 522 (W.D. Ky.
1903))).
161. Id. at 142; Ejusdem generis, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A canon
of construction holding that when a general word or phrase follows a list of specifics, the
general word or phrase will be interpreted to include only items of the same class as those
listed.”).
162. Nikis v. Commonwealth, 131 S.E. 236, 238, 238–39 (Va. 1926) (“That a bridge is
not a building has been frequently decided, and it seems hardly necessary to say that an
approach to a bridge which is a public highway is not a building.”).
163. See James, 302 U.S. at 143.
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664 HOUSTON LAW REVIEW 56:3
D. Conclusions
Although the Enclave Clause includes reference to “Places
purchased by the Consent of the Legislature of the State in which
the Same shall be,” this has no bearing upon the right of the
federal government to use its power of eminent domain over a
reluctant state in order to appropriate its land.164 Thus, the
Enclave Clause does not provide a state the means to successfully
challenge the right of the federal government to acquire state-
owned land by condemnation.165 Instead, the Enclave Clause
provides for a determination of the allocation of jurisdiction
between federal and state governments when the federal
government acquires land from a state for certain defined
purposes.166 If the federal government purchases land from a state
for one of those defined purposes, then the federal government is
entitled to obtain exclusive jurisdiction over that land. However,
by federal statute, conferring such jurisdiction is neither
automatic nor presumed, though the eminent domain statutes of
Texas provide for the handing over of exclusive jurisdiction to the
federal government upon request. The prevailing judicial
interpretation of the phrase “other needful Buildings” in the
Enclave Clause as “whatever structures . . . found to be necessary
in the performance of the functions of the federal government”
likely encompasses the border wall, and therefore the federal
government would have the constitutional right to obtain
exclusive jurisdiction over lands acquired for the border wall,
current federal statutes notwithstanding.167
VI. OVERALL CONCLUSIONS
This Comment has analyzed the power of the federal
government to acquire state-owned lands by condemnation, using
the hypothetical construction of the U.S.-Mexico border wall in Big
Bend Ranch State Park as an example. The federal statutes
providing for the acquisition of lands and erection of the border
wall are commensurate with the federal government’s
constitutional powers to control immigration and regulate
commerce with a foreign power. The Texas statute governing
eminent domain provides consent for federal condemnation
proceedings and for the cession of jurisdiction to the federal
government. The overriding policy concern is that the federal
164. U.S. CONST. art. I, § 8, cl. 17; see supra Section V.B.
165. See supra Section V.B.
166. See supra Section V.B.
167. See supra Section V.C.
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government should not be hostage to a recalcitrant state—or
individual—in conducting its business. Thus, the power of the
federal government to procure state-owned lands is potentially
limited only by a finding that the selection of land is arbitrary and
capricious, though this presents the challenger a heavy burden of
proof. The federal government is not limited in applying its power
of eminent domain to state-owned lands in furtherance of the
objectives of the border wall statutes as long as the exercises of
condemnation power are “appropriate and plainly adapted to the
permitted end.”168 Though the Takings Clause of the Fifth
Amendment of the Constitution applies to the federal government
when it acquires state-owned land for a public use by
condemnation, the federal government need only provide
appropriate compensation to the state. Furthermore, the “consent”
provision of the Enclave Clause does not limit the condemnation
power of the federal government to acquire state-owned land.
For these reasons, Texas lawmakers’ pursuit of Bill S.C.R. 31
futilely expresses opposition to the construction of the border wall.
Even if the Bill is passed and curtails Texas’s statutory consent to
federal condemnation, the federal government’s supreme power
would prevail. Therefore, if there is such a desire within the
federal government, state-owned land, including land within Big
Bend Ranch State Park, may be acquired by the federal
government by condemnation to construct the border wall despite
any protest by the state of Texas or anyone else. Additionally,
should the federal government act beyond its constitutional
powers in condemning state-owned lands with the consent of the
state, it would be difficult to identify a suitable plaintiff who would
have the necessary standing to oppose or enjoin such actions.
Apart from organizing protests, lobbying federal legislators,
and so on, the chief remaining avenue that is preserved in law for
protagonists to counter the construction of the border wall—in Big
Bend Ranch State Park or elsewhere—is via the ballot box.169
Simon J. Harrall
168. United States v. Darby, 312 U.S. 100, 124 (1941).
169. See Veazie Bank v. Fenno, 75 U.S. 533, 548 (1869) (“[T]he responsibility of the
legislature is not to the courts, but to the people by whom its members are elected.”); THE
FEDERALIST NO. 44, at 322 (James Madison) (Benjamin Fletcher Wright ed., 1961) (“[I]n
the last resort a remedy must be obtained from the people who can, by the election of more
faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate
redress may be more confided in against unconstitutional acts of the federal than of the
State legislatures, for this plain reason, that as every such act of the former will be an
invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound
the alarm to the people, and to exert their local influence in effecting a change of federal
representatives.”).
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