In order for President Donald Trump to build his wall, the U.S. government will have to use its eminent domain authority to condemn and acquire potentially thousands of acres of private land along the Mexican border. A cornerstone of the government’s ability to condemn such property under the Fifth Amendment is its ability to demonstrate that the taking will occur in furtherance of a legitimate public purpose.

In the 2005 case, Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court reaffirmed its longstanding policy of accepting the legislative judgment of the government to determine whether taking private land would serve a public purpose, while also recognizing that the government may not take property “under the mere pretext of a public purpose” when the actual purpose of the taking is to “bestow a private benefit.” Should the president attempt to condemn private property in furtherance of the wall, it will undoubtingly require the courts to revisit the question of when does the government’s use of its eminent domain authority violate the Kelo “pretext” admonition.

‘Kelo’