Brooklyn Law Review


Philip Lee


Through the power of eminent domain, President Donald Trump is seeking to take properties owned by private landowners and Native American tribes, 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 has 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: to stop illegal immigration. If Trump succeeds, then potentially thousands of people from all racial backgrounds will lose their land for an ill-conceived government plan that is infused with racial animus and will do little to benefit the public. As it now stands, federal law under cases like Kelo v. City of New London are on Trump’s side because the eminent domain doctrine has been judicially defined in a way that makes it easy for the federal government to take what it wants as long as it identifies a legitimate public benefit. This article aims to apply the interest-convergence thesis in a new way, centering the analysis on eminent domain. It addresses the question of whether courts should give the federal government deference in taking private property in order to build a border wall. It 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 homeownership as a civil rights matter, while white landowners have an interest in limiting the power of government to take their homes from a property rights perspective.