Academic journal article Texas International Law Journal

How Property Rights Are Affected by the Texas-Mexico Border Fence: A Failure Due to Insufficient Procedure

Academic journal article Texas International Law Journal

How Property Rights Are Affected by the Texas-Mexico Border Fence: A Failure Due to Insufficient Procedure

Article excerpt

Abstract

The project pursued in this paper is a normative and positive discussion of the procedural failings of the Department of Homeland Security (DHS) in acquiring property for construction of the Texas-Mexico border fence. The factual situation is unique and informs what the procedure ought to be, why, and how existing procedure has been insufficient, and the degree to which process may mitigate the damage to property rights and the secondary harms that result from threats to such rights.

I. INTRODUCTION

In 1996, the U.S. government ordered the construction of a border fence between the United States and Mexico to reduce illegal entry of people and narcotics from Mexico into the United States. With that mandate, Congress gave the Attorney General- and later the Secretary of Homeland Security- authority to seize, if necessary, private property through eminent domain. That mandate has resulted in the construction of an eighteen-foot high fence at certain segments of the U.S.-Mexico border, intersecting the private property of landowners, many of whose families have held the land for generations.

This paper examines how the Department of Homeland Security (DHS) has implemented its construction mandate, looking specifically at the impact on private property rights and the secondary harms that result from threats to those rights. The focus of this paper is not to challenge the value of the policy choice of the border fence itself, but rather to evaluate and question the process by which the DHS has acquired property in execution of this mandate and how it has decided where along the border to construct segments of the fence. This paper concludes that the policies employed by the DHS, as well as the Congressional mandate, lack sufficient procedural safeguards to protect the rights of property owners.

Congress has mandated that the DHS construct 700 miles of fencing along the U.S.-Mexico border, 370 miles of which were to be completed by the end of 2008. However, the DHS Secretary has exclusive discretion to determine the location of the fencing, the process by which those location decisions are to be made, and how the land for the border fence is to be acquired.

While detailed policies and procedures exist to measure the impact of government actions on the environment or Native American lands, no similar processes have been established to measure the impact of government actions on property owners or property rights. Indeed, there are no standard or formal procedures by which the land acquisition process should proceed. All of these factors contribute to insufficient due process for property owners at the TexasMexico border.

Although Congress has required border fencing along the Mexican border in California, Arizona, New Mexico, and Texas, the focus of this paper is on Texas because of the consequences of some of the takings of private property there.' The federal government, through the DHS and in the interest of national security, has:

(1) acquired private property, on which landowners reside;

(2) built an eighteen-foot tall steel fence along only some segments of the border, but not on others;

(3) severed properties in some instances, thereby leaving portions of a single property on separate sides of the fence; and

(4) in the process, has separated families, cultures, and land.

These features have particular relevance when evaluating and characterizing the procedural failures of the border fence project, the harms that have resulted, and the normative solutions.

In the Section II of this paper, I will explain the legislative background of the Border Fence, as well as provide information on the formation and reorganization of the DHS, the agency responsible for executing the border fence project. The internal structure of the DHS can offer a positive explanation of its capacity to provide due process. In the Section III of this paper, I will offer evidence of the means by which the DHS has carried out the subject mandate- how it has acquired property, how it has interacted with property owners, and how property rights were violated and the harms that resulted in those instances. …

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