Originally Posted by unhyphenatedconservative
I'm an attorney and I discussed this issue with some attorneys I interned with while in school. My theory of the case was that by refusing to enforce the the borders, the government would be liable for an involuntary taking of the property of property owners whose land is trespassed on.
Loretto v NY Teleprompter held that a physical invasion of private property under government auspices, no matter how minor, is a taking and falls under the Fifth Amendment requirement for compensation.
The lawyer whose I spoke with, a very intelligent and connected woman in Washington, was intrigued by the notion. She saw the main problem as being in proving causation. For Loretto to apply, the state has to be acting in some way. The argument would have to be either that the government's acquiesence equals state action or that the government is acting in some manner to prevent property owners from protecting their property.
For this to work, we would probably need a public interest firm like Pacific Legal Foundation to take it. Another possibility would be for groups like FAIR and CIS to start a coalition to fund a legal effort.