Trump thought his executive declaration of a national emergency was the way to get a wall. He forgot about the fact that only Congress can seize land for something like a wall in the first place.
In a textbook example of how to shoot yourself in the foot, Trump's emergency declaration that allows him to build his border wall may actually prevent him from building his border wall. It's all thanks to the principle of eminent domain — the government's right to seize land from private landholders for a public purpose — and the fact that only Congress, not the executive branch, can seize that land.
By all metrics, Trump's national emergency declaration has proven to be a resounding failure. Just over two weeks ago, when he declared the entirely unnecessary "emergency," there were immediately two lawsuits. Then, a third of the country — 16 states — sued to stop implementation of the fake emergency. The ACLU has also sued.
Things are no better on the legislative front. Last month, the House of Representatives passed a resolution terminating the emergency declaration. With the defections of Republican Sens. Rand Paul (KY), Susan Collins (ME), Lisa Murkowski (AK), and Thom Tillis (FL), it looks like the Senate will also pass something opposing the declaration, forcing Trump into a veto.
And let's not forget that the House Judiciary Committee is also going to investigate the declaration, calling it a "reckless disregard for the separation of powers and [Trump's] own responsibilities under our constitutional system."
All of these obstacles might be surmountable, but it is pretty tough to get around the fact that the power of eminent domain just isn't something the executive branch can exercise, no matter how much Trump wishes it could.
Trump's border wall fiasco requires the government to seize more than 1,000 miles of Texas land along the border, but his emergency declaration is an executive branch decision — an executive order. He doesn't have the backing of Congress nor the authority of Congress behind him, which means he can't get his mitts on that land.
Rep. Will Hurd, a Republican with a district that encompasses 820 miles of the border in Texas, voted with the Democrats in condemning the wall declaration. He doesn't think that there's any need for the national emergency, and he definitely doesn't like the idea of the government taking land away from private citizens in his district.
That view is generally commonplace among Republicans because they see eminent domain as legislative overreach. But in the topsy-turvy world of Trump, Republicans now need to align themselves with the view that it is a great idea for the government to steal your land when it wants it for a governmental purpose.
But no matter how much they pretend to like that idea, though, there aren't enough votes to have Congress vote to seize the necessary land.
Trump really managed to outsmart himself here, so much so that even with his utterly fake national emergency, he still won't get the wall he desperately wants.
Published with permission of The American Independent Foundation.