Excerpted From: Philip Lee, A Wall of Hate: Eminent Domain and Interest-Convergence, 84 Brooklyn Law Review 421 (Winter, 2019) (303 Footnotes) (Full Document)


PhillipLee.jpegDonald Trump is no stranger to eminent domain. In the 1990s, Trump wanted land around Trump Plaza to build a limousine parking lot. Many of the private owners agreed to sell, but one elderly widow and two brothers who owned a small business refused. Trump then got a government agency--the Casino Reinvestment Development Authority (CRDA)--to take the properties through eminent domain, offering them a quarter of what they had previously paid or been offered for their land. property owners fought back and finally won. Although the CRDA named several justifications, from economic development to traffic alleviation and additional green space, the New Jersey Superior Court found there were not “sufficient assurances that the properties to be condemned will be used for the public purposes cited to justify their acquisition.” In reaching its result, the court noted that the legality of a government taking “may ... turn upon an assessment of the consequences and effects of the proposed project.” The court refused to give significant deference to the government agency's determination that the public purpose would be satisfied. Instead, it evaluated the government's claims on its own and found them lacking.

This heightened scrutiny is generally absent in federal court decisions interpreting the scope of public use for eminent domain power. This lack of federal fetter on eminent domain is troubling because of President Trump's promises to build a border wall between the United States and Mexico. Trump instigated chants of “build a wall!” at his campaign rallies, issued an executive order concerning the wall within his first days in office, and shut down the government over border wall funding. Construction of Trump's proposed border wall commenced in late September 2017. In November 2017, Trump requested additional resources to hire government attorneys to handle eminent domain cases in the coming year. After failing to secure federal funding for his border wall for over a year, Trump partially shut down the government in December 2018. Ending on January 25, 2019, this shutdown became the longest in U.S. history. about 650 miles of border fencing were already constructed in 1990, the proposed wall would be both much longer and much more massive. According to the executive order, “wall” is not just fencing, but “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The wall would also span the entire “'Southern border’ ... including all points of entry.” The southern border encompasses roughly two thousand miles. It stretches across the states of California, Arizona, New Mexico, and Texas. Two-thirds of the land along this border is private, state-owned, or tribal land, while only about one-third is owned by the federal government. A major obstacle to building the wall besides the price, which Mexico is not going to pay, is the property rights of the private landowners and Native American tribes who occupy the land. For those who refuse to sell their property to the federal government, under cases like Kelo v. City of New London, the government will be able to take it through the power of eminent domain with little check on its power. article is about the interest-convergence thesis, which posits that civil rights gains are made possible when the interests of racial minorities converge with the interests of the white majority. is a useful theoretical tool in analyzing the controversy surrounding the proposed border wall because it highlights overlapping interests between many different racial groups that otherwise may be missed. As such, this article argues that we are in a unique historical moment in which the interests of minority and majority racial groups have converged to push for heightened scrutiny in legal challenges to federal government takings of private land. In particular, racial minorities have an interest in increasing and maintaining their home ownership as a civil rights matter, while white people have an interest in limiting the power of government to take their homes from a property rights perspective.

This article proceeds in three parts. Part I provides an overview of Professor Derrick Bell's influential interest-convergence thesis. This Part also introduces the public use doctrine, in addition to a new idea of micro- and macro-level interest-convergence to explain what appears to be civil rights gains in the property realm when broader interests between majority and minority racial groups have not converged, but more individualized interests have. Part II applies a racial reinterpretation of the three cases--Berman, Midkiff, and Kelo--that created a broad, deferential interpretation of public use to show that minority and majority racial interests have converged on a macro-level around reforming federal eminent domain law. This Part highlights the racial dimension of important Supreme Court cases that, on first take, appear race-neutral. Finally, Part III suggests some possible ways forward by focusing on ways to challenge the federal government's takings power with various forms of heightened judicial scrutiny. Part III argues that the time is ripe to pursue such alternatives because we are in a moment of macro-level interest-convergence.

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President Donald Trump is seeking to take privately owned and tribal properties, including people's homes and businesses, to build a continuous physical wall along the two thousand mile border between the United States and Mexico. He even partially shut down the government for the longest period in history in order to pressure Congress to fund his wall. Substantial evidence suggests that this massive government condemnation scheme will not effectuate Trump's primary purpose--the stopping of illegal immigration from Mexico. We are at a unique point in history where the interests of both the minority and majority have converged on a common goal: to restrict government power to take private property unless it can be put to its proof that such taking is justified. The best way forward involves applying heightened judicial scrutiny in which the government must justify that its means are connected to its stated ends. The only way to reform the law in this way is to embrace this moment of interest-convergence--i.e., acknowledge an alignment of interests between groups whose interests have historically diverged and move forward together.

Professor of Law, David A. Clarke School of Law, University of the District of Columbia; B.A., Duke University, 1996; J.D., Harvard Law School, 2000; Ed.M., Harvard Graduate School of Education, 2012; Ed.D., Harvard Graduate School of Education, 2013.