Ilya Somin Commented on the Governor of Arizona’s Building a Border Wall on Federal Land

By Nick Phillips Arizona Capitol Times August 25, 2022

Gov. Doug Ducey’s attempt to close a gap in the border wall on federal land went beyond even what hawkish Arizona politicians have proposed – and gubernatorial candidate Kari Lake’s team says it’s giving credence to her position on border issues.

Ducey’s order to construct a shipping container barrier along open sections of the border near Yuma falls in line with a political message the governor has been repeating for months – that the federal government’s actions are too little, too late to tackle what he has called a “crisis” at Arizona’s border with Mexico. But it also marks a shift from a governor who had previously resisted some of the more aggressive calls for action on border issues coming from within his own party.

Earlier this year, in response to the calls to declare the state was facing an “invasion” from unauthorized migration and send national guard troops to the border, Ducey insisted he was already “doing everything possible” on the border. He argued that it was up to the feds, not the state, to take more action.

And during the primary campaign, even before he endorsed Lake’s Republican opponent Karrin Taylor Robson, Ducey specifically criticized Lake’s border plans, which include aggressive wall-building and national guard mobilization.

“She’s making things up,” Ducey told The Arizona Republic in May. “There’s not a new idea, or an additional idea, in the plan,” he added.

Now, however, Ducey has effectively implemented a centerpiece of Lake’s plan. On August 24, the Governor’s Office said the work was done: 130 shipping containers now block 3,820 feet of the border, including on land the federal Bureau of Reclamation owns.

For Lake, the Trump-endorsed Republican nominee for governor, the container barrier looks like “validation.”

“The most significant element to Governor Ducey’s action is placing these containers directly on federal land, in validation of Kari Lake’s proposal to declare an invasion, use Arizona’s constitutional right to defend our territory, and finish constructing the actual wall on federal land,” Ross Trumble, a spokesman for Lake, said in an email.

Ducey hasn’t explicitly adopted the controversial (and legally dubious) “invasion” theory that Lake and some former Trump administration officials pushed, but with the containers he is executing part of the border policy plan long advocated by right-wing Arizona politicians and taking it further than previous proponents.

Proposals from Arizona Republicans to build a border fence without federal help date back more than a decade. But the starting point for those discussions has invariably been that the state’s wall-building would be limited to state-owned borderlands, or private property owned by individuals amenable to the border fence.

“It’s building a state wall on state land – that’s the discussions I’ve heard,” said Andrew Gould, a former Arizona Supreme Court justice and a failed candidate in the Republican attorney general primary.

There’s a legal reason for that. “Ordinarily, only a property rights holder has rights to develop land, and that applies equally to the federal government as it does to private land or to state government-owned land,” said Troy Rule, an Arizona State University law professor.

Portable shipping containers could be more easily removed than a permanent fence or wall, but from a property law perspective there isn’t a significant difference.

The large amount of federal and tribal property in Arizona’s borderlands meant that wall-building proposals were limited in scope. Only about 18.5 miles of land along Arizona’s border with Mexico are controlled by the state, according to the Arizona Land Department.

Although Trumble said Ducey’s action validated Lake’s plan to put the wall on federal land, Lake has equivocated on that point.

She has made plenty of casual comments about her commitment to build a wall despite federal objections – “What’s Joe Biden going to do – arrest a sitting governor?” she asked one interviewer – but in a written response to questions provided earlier this year, she took a more cautious stance. “We must immediately put up a wall where we can, including state land and even on private land with owners who are willing to cooperate and save our state,” she wrote.

If that reveals a hesitance on Lake’s part, the reason behind it would be clear: if the state builds a border barrier on federal land without permission, it’s violating property law. Ducey’s office hasn’t disputed that there’s no legal basis for its actions.

“To oversimplify a little bit, it’s similar to if I came onto your land, and I started storing my stuff on your land without your permission,” said Ilya Somin, a law professor at George Mason University.

CJ Karamargin, a spokesman for Ducey, didn’t say whether the Governor’s Office disagreed with the assessment that the move wasn’t legal, except to say, “if the federal government shares that view, we’ve yet to hear from them on it.”

Arizona might not get any pushback from the feds, at least for now.

A spokeswoman for the Bureau of Reclamation didn’t respond to questions about whether BOR would take action on the containers, but said the agency had “reached out to Arizona’s Department of Emergency and Military Affairs to discuss this issue.”

Somin said that the federal government would have a straightforward path to take action, if it wanted to do so. “As a legal matter, I would feel like I would certainly have the right to just remove the containers or go to court and get an injunction or a court order to do it,” he said. “Whether I would actually do it or not, that might raise political considerations or other things.”

Those political considerations would probably include a general election campaign in which the border is expected to figure prominently. Migrant detentions by federal law enforcement agents have reached new heights this year, putting Democrats on the defensive on immigration policy.

Barrett Marson, a GOP consultant, said Democrats don’t want to look like they’re stopping something that could potentially help solve problems at the border. “From … a political perspective, it would be disastrous for the Biden administration to order Arizona to take it down, or to take it down,” he said.

The federal government might wait until after the election to take action, or other groups, like environmental advocates, could potentially lodge legal challenges to Arizona’s move. Gould said letting the containers sit there for a few months or even a few years wouldn’t jeopardize the federal government’s basic property rights on the land.

Democrats don’t appear eager to criticize the move. A spokesman for Secretary of State Katie Hobbs, the Democratic nominee for governor, didn’t respond to a request for comments.

U.S. Sen. Mark Kelly, a Democrat running for re-election in November, said last week that he could see the rationale behind Ducey’s move. “I understand the governor’s sentiment on this and why he wanted to do that,” he said. “There’s a crisis at the border and it’s important to address it.”

Kelly himself touted his own moves to address Arizona’s border issues. Just days before Ducey announced the shipping container plan, Kelly toured the Morelos Dam, a popular Yuma border-crossing site where the Department of Homeland Security said it will fill a gap in the existing fence.

Kelly took credit for pushing DHS to follow through on the plan.

But apparently not content with DHS’ promises, Ducey’s orders to the Arizona Department of Emergency and Military Affairs included placing shipping containers at the Morelos Dam site, where the federal government announced plans to complete a permanent fence.

Ducey didn’t mention DHS’s plans, but repeated his complaints about federal inaction in a statement about the container action.

“The Biden administration’s lack of urgency on border security is a dereliction of duty,” he said. “Arizonans can’t wait any longer for the federal government to deliver on their delayed promises.”