Analysis: Why the Wall Will Never Rise

The brush country along the Rio Grande on the Texas-Mexico border grows thick: a jagged, tangled landscape of thorny trees, prickly pear, and grass so tall, it can hide a horse. Eight-foot rattlesnakes blend into rocks. Feral hogs wallow beneath mesquite thickets.

If President Donald Trump ever gets the funding for his long-promised wall, he will have to plot a course through Texas. But he will never make it all the way through here, the 800-mile stretch from Laredo to nearly El Paso. There will be no “concrete structure from sea to sea,” as the president once pledged. Taking this land would constitute an assault on private property and require a veritable army of lawyers, who, I can assure you, are no match for the state’s powerful border barons.

Starting in 2006, when Congress passed the Secure Fence Act, the federal government used eminent domain to seize these plots and put up barriers, as high as 18 feet. More than 345 condemnation suits by the federal government resulted in a strip of land 128 miles long, according to a 2017 investigation by ProPublica and The Texas Tribune. Yet dozens of cases are still tied up in court, and settlements have been wildly unequal: A retired schoolteacher got $21,500 for two acres; a lawyer and banker who hired one of the state’s biggest laws firms got nearly $5 million for just six acres.

The cost has been staggering. The most recent 33 miles in the valley have set back taxpayers $641 million, or $19.4 million a mile, for a hodgepodge of fences, vehicle barriers, and some bollard fencing—with lots of gaps. And no one can really say, definitively, whether this project is worthwhile. To date, no federal agency has systematically audited what all the barriers cost and what, if any, effect they’ve had.

“First, this suggests that this is all theater. There is no operational decision making about what will actually work, because there’s not really a security crisis,” says Denise Gilman, a law professor at the University of Texas at Austin. “Instead, these federal agencies rush, saying, ‘We’ve just got to get the wall up,’ when what we need is real, targeted law enforcement.”

As messy as land seizure has been in the valley, it would be even messier upriver. The original Spanish porciones grew larger as the soil grew more arid, and that disparity remains visible today; on the drive to Laredo, tiny plots give way to expansive ranches controlled by richer landowners—with more power to oppose eminent domain. I know this place. I’m a Texan who grew up a border rat. And though I’m no cowboy, until recently I lived on a working cow-calf operation, and I know a few ranchers. Over the years, some have allowed me to hunt and fish on their land and treated me like family.

So I can say this, generally speaking: Although many big ranchers and landowners backed Trump, they are conservative in the most traditional senses. They actually believe in small government, free enterprise, free trade, and private property. And nobody puts a wall through their brush. These men and women are a pretty private bunch, too. You won’t find their names in the newspaper screaming bloody murder.

But they know how to make their presence felt. Last year, a couple of dozen border barons from the Laredo region summoned local politicians, cops, and representatives from the Customs and Border Patrol. It was a private, even secret event—no cameras, no press. According to Steve LaMantia, who led the group, the landowners delivered a warning to the feds not to build a wall through their land. To underscore their point, they held another meeting. And just in case it wasn’t crystal clear, they’re going to have another one.

“The general sentiment—to a person—is that everybody is in favor of additional border security,” said LaMantia. But seizing land through eminent domain? “That is diametrically opposed by everybody, from Zapata to Del Rio.”

LaMantia is reserved about his family’s holdings. He will admit to just a cattle ranch and natural-gas wells that front about five miles of the Rio Grande. But the land has been in his family’s hands for generations, even as the clan has made its fortune in beer. Its company, privately held L&F Distributors, controls the entire Anheuser-Busch operation from the Lower Rio Grande Valley to El Paso. It’s a big, big business.

“Everything down here sticks, stings, or bites,” he says, jokingly, about the mesquite-studded landscape. But I don’t think he’s talking about just the flora and the fauna. These landowners may be few, but they’re powerful. Campaign contributions can dry up. Local sheriffs can get the message to stop cooperating quite so much with Border Patrol agents.

“There are people there who have the resources that can fight this,” says Democratic Representative Henry Cuellar, whose district hugs the river from Mission to Laredo.

Dennis Nixon is one such person. The president of the International Bank of Commerce in Laredo, he is a potent force in Texas and national politics. He fought for NAFTA in the 1990s, but he backed Trump, who vowed repeatedly to dismantle the trade agreement, over Hillary Clinton in 2016 because the Obama administration, in his view, was rough on banks like his. (His community bank has assets of $12.2 billion.) Now he’s against a border wall.

“Those with influence and power have the ability to hire big lawyers,” says Gilman, the law professor. “There is no doubt about that.”

The region’s border barons also have the people of their state behind them: Texans have consistently opposed the wall in polls. So far, however, they haven’t received much support from their Senate delegation. Senator John Cornyn has turned from staunch opponent of eminent domain to total squish, saying that some fencing is needed—without saying how much or where. Senator Ted Cruz backed $25 billion for Trump’s wall in December and suggested, preposterously, that Joaquín “El Chapo” Guzmán, the jailed Mexican drug kingpin, could pay for it.

Despite Republican subservience to Trump, however, it seems Democrats in Congress will manage to stand fast against Trump’s wall. Every single member of Congress from the border— from Brownsville to San Diego—opposes it, including the sole Republican, Will Hurd of Texas. If Trump declares a national emergency, Congress can act to terminate it. And if Congress can’t get its act together, the last line of defense for the border barons will be federal court.

Texas just successfully opposed a federal taking of farmland along the Red River border with Oklahoma. Although the courts have upheld eminent domain under the Secure Fence Act, a national-security declaration is another matter. The border barons would have standing in court to challenge a declaration—they would be directly affected—and they would have reason on their side. After all, apprehensions of undocumented immigrants are down from 1.6 million in 2000 to 300,000 in 2017. There is no disorder in the streets. Crime in every border city is down. Way down. Among the lowest in the nation.

And here’s the kicker: The borderlands between Laredo and El Paso see the smallest number of undocumented immigrants anywhere along nearly 2,000 miles of border, according to the Customs and Border Patrol’s latest figures.

“The president can declare whatever he wants,” says Gilman. “They could just challenge the premise that this is a national-security crisis.”

If the border barons lose in court, that still won’t mean victory for Trump. They could simply chew up the wall by chewing up the clock on Trump’s time as president. They could demand an injunction blocking the government from taking the land before arriving at a settlement. And their lawyers could wrap the government up in years of haggling over dollars.

Here is the final, insurmountable barrier to Trump’s wall here: money. The government has already paid nearly $1 million an acre for that six-acre plot in the Rio Grande Valley, potentially setting a precedent. If the Trump administration seized 700 miles of private land along the border, one mile wide—640 acres per square mile—the tab could come to $448 billion. Nearly 20 times the wall itself.

“The federal government is much more cautious in taking land from wealthy landowners,” says Gilman. “Agencies just say, ‘Let’s build a wall elsewhere.’ There are ways that wealthy landowners can limit the construction of the border wall.”

That “elsewhere” might mean Big Bend National Park. It is federal land, after all. Environmentalists will point out that the park’s Chisos Mountains are home to golden-fronted woodpeckers, mule deer, and black bears; many would be blocked from crossing back and forth to Mexico if Trump were to get his wall. Trump, though, has never shown interest in environmental concerns.

The land beyond the park, en route from Presidio to El Paso, is owned by still more land barons, of a different sort. Most didn’t come by their land through royal land grants; some don’t even have a long family history here. But these owners are often rich, influential big-city dwellers—lots of bankers, lawyers, and doctors, with lots of clout in Congress. And they don’t want Trump’s wall either. They can also easily help bankroll legal challenges.

“The closer people get to the border, the less enchanted they are with the wall,” says David Yeates, the CEO of the Texas Wildlife Association, a San Antonio–based association of 10,000 large landowners who own about a quarter of Texas. “And we are a private-property state.

“Border security is critical,” Yeats continues. “But there’s a big difference between a wall and security.” Like everybody else I spoke to, Yeats points to the same solution the polls and Democrats identify: more border security, including agents, patrols, drones, and sensors.

In Texas, Trump may wind up getting just a few sections of his wall, concentrated in cities, where the structure—concrete or steel slats, or some alternative—would be redundant with the tangle of barriers already there.

But nobody thinks a 30-foot wall will do anything more than invite 32-foot ladders. And nobody I know wants to wind up with a story like that of Phyllis Price, who lives in San Elizario, east of El Paso, not far from where the open country ends and the bollard fence begins. In 2008, when the big, ugly rust-colored fence had just gone up in her picturesque village, founded in 1789, she drove to the river to scout a place to ride her horse. There she met a Border Patrol agent.

“Can I ride through that gate?” she asked.

“Absolutely not,” he answered.

“Why?” she asked.

He answered: “You might get shot.”

She hasn’t ridden her horse down there since.

Trump, like most other people in Washington, doesn’t know what he’s getting into down here.

He doesn’t know his history and so certainly doesn’t know his Texas history. But perhaps someone should tell him that the most popular symbol of resistance here is the Gonzales battle flag. Hastily painted on cloth in 1835 by Texan rebels, it was hoisted at the outset of revolution against Mexico. The rebels dared the Mexican army to seize back an artillery piece with these words: “Come and take it.”

So, yes, everything down here sticks, stings, or bites. And if Trump wants this land for his wall, he’ll have to come and take it.