Big Bend Border Wall Case Goes to the Supreme Court

The fight over the Big Bend border wall is now in front of the Supreme Court. On Oct. 21, Solicitor General D. John Sauer asked the justices to lift a federal judge’s order that has stopped barrier construction across the Big Bend Sector of West Texas, a stretch of the Rio Grande the government calls too exposed to leave open and the challengers call one of the quietest on the southwest border.

U.S. District Judge Kathleen Cardone of El Paso granted a preliminary injunction on Oct. 2 in Friends of the Ruidosa Church v. Mullin, No. 3:26-cv-01099, barring construction and “ground-disturbing activities” in the sector. According to the Associated Press, she found the challengers likely to succeed on their “major questions doctrine claim” and concluded the Big Bend waivers were “issued in excess of the Secretary’s authority.” CBS News reported that the order covers three waivers issued between February and July, one by former Secretary Kristi Noem and two by Secretary Markwayne Mullin, and that Cardone refused to pause her ruling shortly before the government went to Washington.

The stakes reach past one project. The waiver lets the DHS secretary set aside environmental, historic preservation and other laws that would slow wall building. If the major questions theory holds, every future waiver faces a new kind of challenge.

Why the Big Bend border wall case skipped the Fifth Circuit

The power comes from Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as expanded by the REAL ID Act of 2005. Congress paired it with tight limits: challenges must raise constitutional claims, must be filed within 60 days, and a district court ruling can be reviewed “only upon petition for a writ of certiorari.” There is no stop at the court of appeals, which is why a single trial judge’s order went straight to the justices.

That design has mostly favored the government. Courts rejected nondelegation attacks on the waiver in Defenders of Wildlife v. Chertoff in 2007, which the Supreme Court declined to review, and in the Ninth Circuit’s 2019 decision In re Border Infrastructure Environmental Litigation. The Big Bend plaintiffs, including the Center for Biological Diversity, a river guide and a historic church in Presidio County, won on newer footing: the major questions doctrine, which the Supreme Court has used since 2022 to demand clear congressional authorization for agency actions of vast significance.

The major questions doctrine is a legal rule used by U.S. courts which states that if a federal agency wants to make a decision of vast economic and political significance, it must have clear and explicit authorization from Congress. Under this doctrine, courts will not allow an executive agency (like the EPA, the Department of Homeland Security, or the CDC) to issue sweeping, transformative regulations based on vague, broad, or old laws. Instead, the Supreme Court has ruled that Congress must “speak clearly” if it intends to delegate such monumental power to unelected agency officials.

The government frames the order as a security problem. “The district court’s injunction significantly frustrates the government’s ability to stop the flow of illegal aliens,” Sauer wrote, according to CBS. Courthouse News quoted the application warning that “leaving a 300-plus-mile gap in border defenses would act as a dangerous magnet for cartels.” In seeking a stay from Cardone, the Justice Department said halting work would cost CBP at least $462,800 a day, Texas Public Radio reported.

What the crossing numbers show

The two sides read the same sector differently, and their numbers do not directly conflict. The government’s filing cites more than 89,000 apprehensions in the Big Bend Sector from 2021 through 2025, CBS reported. The plaintiffs say Big Bend ranks last of the seven southwest border sectors, with 0.3% to 2.2% of border-wide apprehensions each year. CBP sector figures reported by Fox 7 Austin put fiscal 2025 apprehensions there at 3,096, down from 11,823 in fiscal 2023.

That gap matters because a stay requires a showing of irreparable harm. A low crossing rate cuts against urgency; the government’s answer, as AP described it, is that walls elsewhere will push crossings into Big Bend if this stretch stays open. The closest precedent favors the government: in Trump v. Sierra Club in July 2019, a divided Supreme Court let wall construction proceed while a funding fight continued. A stay would not settle the major questions argument, but it would put crews back on the river for months while it is litigated, which in practice is often the outcome that counts.

What to watch

Response deadline: Applications from Texas go first to Justice Samuel Alito, the circuit justice for the Fifth Circuit, who can act alone or refer the matter to the full Court. No deadline had been reported as of Oct. 21. Justice Samuel Alito possesses unilateral authority under federal law and Supreme Court rules to independently issue binding emergency orders, such as temporary administrative stays, as the designated Circuit Justice for the Fifth Circuit. However, this individual power is strictly confined to temporary relief during pending litigation and cannot determine the final outcome of the lawsuit.

Separate writings: Any dissent or concurrence would signal how justices view applying the major questions doctrine to the waiver statute.

The case joins a crowded immigration docket at the Court, alongside Mahmoud Khalil’s detention petition and cities’ bid to revive an immigration court rule, and it raises the same question of judicial limits at the border seen in the First Circuit’s airport deportation ruling.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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