Editor: David Reiss
Brooklyn Law School

November 27, 2017

Delaying Trump’s Wall

By David Reiss

photo by Jimmysalv

USA Today cited me in No, Cards Against Humanity Can’t Delay Trump’s Border Wall. It opens,

By now you’ve played a rousing game of Cards Against Humanity or at least heard the game makers want to buy land to block the construction of President Trump’s proposed border wall between the U.S. and Mexico.

The raunchy game, where people fill in the blank or complete sentences with terrible — but funny — things, pulls a holiday marketing stunt every year. Last year, Cards Against Humanity raised money to dig a hole. Before that, they mailed people boxes filled with actual bulls–t.

This year, they asked for $15 from customers to buy a large plot of land along the U.S./Mexico border for their “Cards Against Humanity Saves America” campaign. The promotion already sold out.

A marketing video implies they would separate acres of land into tiny pieces for each participant, in order to hold the government up in court for years. They want to make the push to build a wall time-consuming and expensive by hiring lawyers to keep the land tied up in court, according to the website.

The only problem is, that’s not how eminent domain works.

“This is a way for them to utilize their popularity with an audience most people assume are either indifferent toward political issues or at the very least unsophisticated about how things get done,” said Steve Silva, an eminent domain and land use attorney for Fennemore Craig law group in Reno. Silva has literally used eminent domain to build a wall.

“It’s got a lot of people literally buying into this issue of significant public importance,” he said.

The Fifth Amendment to the U.S. Constitution allows the Federal Government to take property from people for “just compensation.” The amendment favors the government’s ability to take while also protecting an owner’s right to make money. Meaning, property owners must be paid fair-market value for the land.

Determining value is what usually ends up taking years in court, Silva said. TheCongre actual taking of the property takes very little time.

“It’s a two-step process: First thing is that the government has to prove it has the right to take the property,” he said. “Once it establishes that, it can take it immediately.”

The federal government need only establish the land will be used for the public, such as for a large wall owned by the government. Then it can basically take that acreage and start building the wall while fighting out the value in court.

“Congress can also just pass a special bill to take land,” Silva said. “They’ve done that for national parks before. Finally, the U.S. Supreme Court has noted that the U.S. can just seize land summarily by occupying it and ousting the former owner.

“I suspect this sort of move would be really unpopular,” he added.

So, Cards Against Humanity may end up fighting the government for years after the wall is finished.

Even if Cards Against Humanity spreads the ownership of the land out to lots of people — say, thousands of them — the Federal Government can still take the land all at once. But now those individual owners will need to fight each other, Cards Against Humanity and the government for their just compensation.

Since people paid $15 for land, it’s likely they would establish land value and get that $15 back unless Cards Against Humanity somehow improves the land or plans to build a museum, monument or even a parking lot on that space.

But again, that would only increase its value, not slow down the wall’s construction.

In an interview on, law professors David Reiss and Richard Epstein argued the court would reject Cards Against Humanity’ claim over the land because they’re using it for political purposes. But attorneys Silva and Lynn Blais disagree. The game makers are using land as a protest, which should be respected by the court, so their protest shouldn’t matter in eminent domain proceedings.

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