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Politics Aside, a Constitutional Law Scholar on the Border Wall | Gerald Dickinson | TEDxPittsburgh

Politics Aside, a Constitutional Law Scholar on the Border Wall | Gerald Dickinson | TEDxPittsburgh

at the southwest border in Texas is a loiza Tamez she owns land along the border and every day to walk onto her Lance has to walk 1,200 feet to the east down a gravel path and there she arrives at a massive metal fence and a gate and she has a code and she taps the code and to this pad and the fence the gate opens up and she walks through now why is this in 2006 Congress passed the secure Fence Act there's a bipartisan effort embraced by Democrats and Republicans to secure the southwest border it allowed the Department of Homeland Security to build 700 miles worth of fencing along the southwest border to halt illegal immigration into the United States fast forward to January 2017 and President Trump science executive order 13 7 67 mandating the construction of a massive contiguous wall along the southwest border from California all the way through to Texas fast forward again to February 2019 President Trump unable to get his funding through Congress to build his wall declares a national emergency therefore diverting congressional funds that are unauthorized to the military for the military to begin seizing private property and begin building the wall now our country is divided not just by a fence between Mexico and United States it's divided by a wall an ideological wall in a cultural wall and on one end of the spectrum we have people who say build the wall and the other end inspection we have people who say don't build the wall but but at the end of the day putting politics to the side for one moment just imagine a loiza Tamez in 2007 the Department of Homeland Security came across her land and they sought to take it to build the fence but things didn't go too well Eloisa Tamez fought the federal government in federal court for seven years seven years litigating fighting consulting trying to keep her property trying to keep her land inevitably the federal government paid Alois Tamez 56 thousand dollars for a quarter acre of land for that fence to bisect directly through her property now putting politics aside imagine Alois had to mezes her fight with the federal government happening over and over and over and over and over again all along the southwest border with thousands of other landowners who are gonna fight tooth and nail with the federal government to keep their property it's going to take time and there are obstacles and impediments to building a massive wall so let's talk about the southwest border for a moment it's 2,000 miles long two-thirds of the land is owned by the federal government the rest of the land is owned by private landowners Native American tribes and state local governments just in Texas there are 5000 individual parcels owned by individual landowners that it would have to be seized in Arizona there's 62 miles of land that's occupied by the Tohono o odham tribe just in Texas there's the Big Bend National Park which the wall would have to go directly through and there's also the Rio Grande River where the wall would literally have to go directly down the river it's gonna take time it's gonna take effort resources to build this wall so what's the precedent for building these major federal projects well we got to take a step back to the 1970s Big Cypress National Preserve one of the largest land acquisition projects in American history there the Department of Interior had to require over 500,000 acres of land in order to preserve that natural mosaic ecosystem it took the Department eight years eight years altogether to acquire all the land for this National Park or how about the hairiest Truman dam in Missouri in the 1970s again a large major federal project the Army Corps of Engineers had to gather and acquire thousands of miles of land to build the dam and also to none date thousands of miles planes it took the Army Corps of Engineers 15 years to acquire all the land necessary to build the dam and to a nun date all the waters and the planes that were necessary now as a constitutional law professor oftentimes asked by US senators or reporters from the Washington Post or even my law students in class professor can he do that can president Trump sees so much private property built this wall where did the power come from and how did he get it well oftentimes the answer to these questions is found buried in thousands of pages of congressional testimony from the 1800s and 1900s and oftentimes the answer is found directly in the Constitution so to answer some of these questions we've got to take a step back to 1789 there Congress a gentleman named James Madison went to the House floor with a litany of amendments and changes to the Constitution which would be known as the Bill of Rights and the first ten amendments and smack-dab in the middle of those amendments is amendment number five at the very end of that amendment there are 12 words just 12 words that give the federal government the power to take your private property those words state the following nor shall private property be taken for public use without just compensation now what does that mean the Supreme Court has interpreted that to mean the federal government can take your house and your farm and your ranch so long as they do it for it public use that is to build a dam or to build a fence maybe a highway or perhaps to build a wall and they got to pay just compensation it's the fair market value of the price of your property at that time we call this the takings clause it's called eminent domain condemnation the power to seize your private property when was the first time that this power was ever used and exercised well we got to take a step back to 1864 there admits the Civil War Congress was looking for land and Illinois Rock Island to build a military Arsenal and they had never used this power before never had the federal government gone into state lines to seize private property and to use it to build a military Arsenal but Congress tried something different they wanted to give the Secretary of War the power to go inside Illinois take the land and then build military Arsenal they passed a law which allow us to happen but of course laws have to be signed by presidents and it was this President Abraham Lincoln in April of 1864 that signed that bill the first federal authorization of federal eminent domain and since then the federal government has been taking private property for major land acquisition projects since what about that national emergencies act the declaration several days before President Trump declared his national emergency I got a phone call from a reporter The Washington Post she asked can he do that can he divert unauthorized congressional funds to the military to build a wall is there really an emergency and the wall wouldn't be built for several years well my job as a law professor is not to give the politically expedient answer my job is to profess the truth so I said I'll get back to you and I did and I did what I did is I combed through thousands and thousands of pages of congressional testimony within a two or three day span of time to find the answer and amidst that process I came across a gentleman named Frank Church the senator from Idaho is a Democrat he was the chair co-chair the Special Committee on national emergencies he co-chaired that committee with another gentleman named Charles Mathias who was a senator out of Maryland he was a Republican so this is a bipartisan effort between a Republican and a Democrat to figure out ways to constrain future presidents from using this law in ways it wasn't supposed to be used for at the end of his congressional testimony in 1976 he had a statement just towards the end before this law was voted on and he said the following a president should not be allowed to invoke emergency authorities or in any way utilize the provision of the national emergencies act for frivolous or partisan matters now I got back to the reporter I found the answer I wrote up an editorial and I published it in the Washington Post and to inform and educate the American people about why the law was not supposed to be used a way that the president was using it now I raise this because it's very important for us to understand that actions taken by presidents and members of Congress have consequences today and in the future oftentimes when a law is used in a way that defies political conventions it gives rise is something that we constitutional law scholars call constitutional hardball that is that it opens up an opportunity for the next president or the next member of Congress or a political party to retaliate it escalates a situation where the next president may use that same law for a very different reason do we want to live in a world when to say the next Democratic president wants to declare a national emergency over climate change begin seizing private property to build windmills and then the tit for tat continues and next Republican president decides to declare a national emergency over abortion or perhaps the tit for tat continues and the next Democratic president decides to declare a national emergency over gun violence in seizing firearms right for the health and safety of the people no that's not what the law is supposed to be used for but it sets up this constitutional hardball retaliatory efforts but we as Americans we've been through a lot we are resilient we have resolve in perseverance and we've been through a lot we've overcome a lot of hurdles in difficult times but overcome many obstacles and usually throughout history we come out a better people at the end of the day so perhaps it's better said here today that we as a nation are greater than the walls that divide us thank you

Author Since: Mar 11, 2019

  1. If it's best for our country, then we simply take the land and if the laws aren't set up to make that happen quickly, then we need to change the laws. Make no mistake…. this IS a national emergency!

  2. Obama set the precedent with Obamacare and much more. Trump wouldn't have had to issue executive order if it wasn't for the Dem's going from anti-illegal immigration to anti-Trump to anti-borders to far left extremists. Then they finally get forced into passing a funding bill. 70% citizens support immigration reform to stop the crisis. At least this guy used gun confiscation as an example of an unconstitutional exec order. Shame on politicians all around.

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