In the March 13, 2019 edition of the New York Law Journal’s Eminent Domain column, Michael and David raise the question of whether a politically-motivated declaration of emergency could serve as a valid “public purpose” to permit the Government to take thousands of acres of private property along the Mexican border in light of the US Supreme Court’s warning in Kelo v. City of New London against “pretextual” takings that do not serve a legitimate public purpose. While courts generally defer to findings of public purpose, Congress’ rejection of the President’s request for $5.7 billion in funding for the wall, and its rebuke of the declaration of a “national emergency,” Michael and David opine that this may be one of those rare cases where the courts apply a higher level of scrutiny to a determination that taking private property would serve a public purpose.
See Michael D. Zarin & David J. Cooper, “Sufficient ‘Public Purpose’ to Take Property for Trump’s Wall?,” N.Y. Law Journal, March 13, 2019, at 5.
