Nayda Alvarez's family has lived at least five generations on land on the Texas-Mexico border where her house is but 200 feet from the Rio Grande river.
Not only is there no need for a border wall near her home in Starr County, she said, but if one were to be erected, it would be just feet from the back of her home. The high school teacher fought the Trump administration in court over an attempt to build on her property and if Texas Gov. Greg Abbott moves forward with his announced plan to try to accomplish what President Donald Trump did not, Alvarez will fight him too.
“He’s trying to make his portfolio look real good because he wants to run for president,” Alvarez surmised.
Abbott is likely to face logistical challenges because most of the borderland in Texas is privately owned and some of it is federally owned, which would require the Biden administration to approve any barriers built on federal land.
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The Republican governor said Wednesday he would use $250 million in state money and crowdsourced financing to start building a wall on Texas' 1,200-mile border with Mexico. He did not specify how much the project would cost, where it will go and how long it would be.
Abbott claimed that a combination of state land and land volunteered by property owners would yield 100s of miles of wall. He said he is asking the federal government to return land obtained for the U.S. government's wall and return it to private citizens who can allow Texas to finish the job.
“In response to the federal government’s neglect of all of the people who live along the border, the people who are facing the consequences of the spread of drugs like fentanyl, Texas is stepping up and doing more than any other state ever has done to respond to these challenges along the border,” Abbott said. “Texas taxpayers are having to step up so we as a state can protect our citizens."
The United States currently has 771 miles of barriers along its border with Mexico, according to U.S. Customs and Border Protection. During the Trump administration, 373 miles of old or outdated barriers were replaced and 80 miles of new "primary and secondary" wall were erected where no barriers previously existed. Wall construction mainly focused on federally owned land in Arizona, California and New Mexico.
Trump’s signature campaign promise faced consistent legal and environmental obstacles in Texas, which has the largest section of the U.S.-Mexico border, most of it without fencing. And much of the land along the Rio Grande, the river that forms the border in Texas, is privately held and environmentally sensitive.
The federal government can seize private property for public use through eminent domain, a process that could take years.
David Donatti of the ACLU of Texas said there are 100 court cases pending that involve the government trying to seize land through eminent domain. The Biden administration has not formally dropped them though it has said it is re-evaluating them.
“So these cases remain in a case of limbo where the Biden administration could continue to press these cases, take property, build border wall, but they have not given that sort of concrete commitment one way or the other,” Donatti said.
He called Abbott’s announcement “all hot air.”
“I think it’s a preposterous idea,” Donatti said.
He said that although he hoped it would come to nothing, he thought it likely that Abbott was determined to do something. If the governor tried to use the power of eminent domain to take land, the ACLU would contest his authority to do that, Donatti said.
Any wall would have to be far enough away from the Rio Grande’s flood plain to honor a treaty between the United States and Mexico and so it could end up being some sort of freestanding wall somewhere in the interior of Texas, he said.
“So, whatever the governor builds we imagine would be at least a mile inland, if not more, thereby walling off part of the state to an area south of the border,” he said.
The Fifth Amendment of the U.S. Constitution requires the government pay “just compensation” to anyone whose land is taken for public use. But the government can deposit an amount it deems fair with the court, then seek to take the land immediately on the basis that a border wall is urgently needed.
Domingo Garcia, national president of the League of United Latin American Citizens, said that he thought few landowners along the Rio Grande supported walls or barriers on their property and would likely fight as long as they can. He also questioned whether a court would consider a government request an emergency or legitimate public use of the land.
“It’s highly doubtful that any court would grant eminent domain to build a 13th century wall to deal with a 21st century problem,” Garcia said.
Donatti noted that the Trump administration had been spending $20 billion a mile on the border, far in excess of what Abbott could spend. The state of Texas has set up a webpage and post office box so anyone can donate money for Abbott's wall. The ACLU said it would scrutinize the project for transparency and public accountability.
“These projects are extremely cost intensive and allow ample opportunity for fraud and grift,” he said.
An online fundraising campaign called “We Build the Wall,” ended with four indictments, including that of Trump’s former adviser, Steve Bannon, accused with the others of defrauding hundreds of thousands of donors. Trump pardoned Bannon before he left office.
Large numbers of migrants have been seeking asylum at the U.S.-Mexico border by turning themselves over to U.S. Border Patrol agents. At the same time the number of families and children crossing into the U.S. without their parents has dropped sharply since March and April.
Abbott has taken increased action over immigration since Biden took office, including announcing last week that state troopers will now begin arresting migrants crossing the southern border and charging them with trespassing.
His plan has drawn skepticism and ridicule. Critics note that the U.S. Supreme Court has ruled that the power to enforce immigration laws, including prosecuting illegal entry, is that of the federal government's. Whether or not there is a presidential run in Abbott’s future, he is up for re-election as governor next year and is being accused of using the issue for political benefit.
“This is just political grandstanding by the governor who is running for re-election,” said Garcia. “He knows he has no authority, he knows he has no ability to build a wall much less arrest people for trespassing and putting them in jail.”
Donatti said that the ACLU of Texas would scrutinize trespassing and other arrests and Abbott’s efforts to ratchet up penalties. It is well established that the federal government has authority over the country’s immigration laws and if a state interferes by arresting non Americans, there is the possibility of diplomatic problems, he said.
Meanwhile, Alvarez is hoping the Biden administration drops hers and other eminent domain cases.
“We can’t celebrate until we get a real dismissal,” she said.
However, she's still worried that going forward the security of her property will depend on the political affiliation of the administration in office.
Alvarez also questioned claims by Abbott and others who have said those crossing illegally are armed and dangerous. The immigrants crossing the river are mostly trying to claim asylum but would be turned away on the bridges, she said.
“The violence is coming in? Where? Because I sure don’t see it,” she said.