President Donald Trump's visit to Texas for a photo op at the southern border reminds us that the politics of the wall in Texas, a state that reelected Sen. Ted Cruz, R-Texas, by less than 3 points and flipped 2 House seats from Republican to Democratic, is not what Republicans would have you believe.
A Quinnipiac University poll conducted in July showed Texas voters opposed building a wall by a margin of 51-to-45 percent; independents opposed the wall by a nine-point margin. Meanwhile, in an April Quinnipiac poll Texans signaled they wanted more border patrols 60 percent to 37 percent.
Rep. Will Hurd, R-Texas, the member of Congress with the largest stretch of border in his district, strongly opposes the wall. ("I think building a concrete structure sea to shining sea is the most expensive and least effective way to do border security," he said recently.)
In 2017, he told the Atlantic, “Property rights are important to all Americans — especially Texans — and most of the property along our border has been privately held for generation.” He continued, “Many Texans I speak to think there are better ways to achieve border security without taking their lands, so you can expect a lengthy and expensive fight from these folks.” (Hurd escaped the blue wave in the 2018 midterms by only 926 votes.)
The Washington Post reports that Texas officials, even Republicans, aren't the ones screaming for a wall:
"Litigation is still pending on behalf of some of those from whom land was taken after President George W. Bush signed the Secure Fence Act in 2006.
" 'Border security is three things: It is barriers in places that are hard to control, it is technology, ground sensors, radar, drones and other technological devices used to supplement the barriers, and then it's people,' " Senator John Cornyn (R-Texas) said this week on Fox News. 'It really is a combination of those three, and there is no one-size-fits-all prescription for the entire border. It's quite a diverse geography.'
"[Republican Gov. Greg] Abbott, in a statement to The Post, emphasized that the state has spent billions on border security. But he did not forcefully demand a border wall."
As Hurd warned, landowners have prepared for a fight should Trump proceed with a wall. Indeed, they've already started fighting against existing plans to extend fencing. The Associated Press reports that funding for 33 miles of fencing previously authorized by Congress would "cut across private land in the Rio Grande Valley. Those in the way include landowners who have lived in the valley for generations, environmental groups and a 19th century chapel."
As one might expect, "Many have hired lawyers who are preparing to fight the government if, as expected, it moves to seize their land through eminent domain."
And if Trump proceeds with "more than 215 new miles of wall, including 104 miles in the Rio Grande Valley and 55 miles near Laredo"?
The AP reports, "Even a compromise solution to build 'steel slats,' as Trump has suggested, or more fencing of the kind that Democrats have previously supported would likely trigger more court cases and pushback in Texas."
In addition to affected landowners and border states (New Mexico Gov. Michelle Lujan Grisham and California Gov. Gavin Newsom, both Democrats, would no doubt lead the charge), Congress may sue to stop Trump's power grab if he declares an emergency. The legal issues include question of standing, but more important of "ripeness" - whether Trump's declaration amounts to a real action or is simply a political outburst (like a tweet).
"I think the most difficult issue isn't whether the House of Representatives, or a particular member (like Chairman Adam Smith of the [House] Armed Services Committee) would have standing to sue on the ground that the president is nullifying their right to vote on spending measures and usurping their role as holders of the power of the purse (they might well) but something else altogether," says constitutional scholar Laurence Tribe. "It's whether any lawsuit, even a suit brought by someone injured in a more conventional sense (the way the ranchers who might eventually be subject to eminent domain along the border would eventually be), would be deemed to present a ripe 'case or controversy' simply because the president, by making an emergency declaration under the 1976 Act, would arguably open up some statutory options - e.g., under 10 U.S.C. §2808 - not previously open to him."
Courts would need to consider if the declaration has teeth and portends immediate action. "Because the 1976 [National Emergencies] Act requires the president to specify which statutory authorities he means to activate by his declaration, it could well be that a ripe controversy will be presented," says Tribe.
"Among other things, the president would be hard-pressed, as a matter of public perception, to have his lawyers say 'President Trump isn't doing anything but is just blowing off steam.' "
Tribe observes, "The irony is that, the more the president seeks to use the declaration to win bragging rights, which is what he ultimately cares about, the harder it will be for him to tell a court in which a challenge is brought that there's nothing to see here, just move along."
In sum, national Republicans, Trump flacks on Fox News and Trump’s shrinking base think the wall is a great issue. In states where the wall would actually affect real people and their property, skepticism if not downright hostility is evident. In any event, get ready for a flurry of lawsuits from all sides and full-employment for constitutional, property rights and environmental lawyers. By the time this all gets worked out, Trump will be long gone from the White House.
Jennifer Rubin writes reported opinion for The Washington Post.