Big Bend Border Wall: Supreme Court Lets Construction Resume

An unsigned emergency order lets DHS restart barrier work across West Texas while a judge’s ruling on the scope of the border wall waiver is fought out in court.

The Big Bend border wall project can move forward again after the Supreme Court on Monday, Nov. 9, lifted a federal judge’s order that had halted construction across the Big Bend region of West Texas. The justices granted the Trump administration’s emergency application (No. 26A560) while the challenge continues, giving the government the practical win now and leaving for later the harder question of how far the Homeland Security secretary’s power to waive federal law at the border reaches.

The order was unsigned. Justice Ketanji Brown Jackson was the only justice to note a dissent publicly, USA Today reported, and she did not write an opinion explaining it.

The case, Friends of the Ruidosa Church v. Mullin, was brought by the Center for Biological Diversity, a Big Bend river guide and a group working to preserve a historic church in Ruidosa, Texas, according to Reuters. In October, U.S. District Judge Kathleen Cardone of El Paso blocked work under three waivers issued between February and July, one by former Secretary Kristi Noem and two by Secretary Markwayne Mullin, as this site reported when the Justice Department went to the Supreme Court.

The waiver question the Big Bend border wall order leaves open

The power at issue comes from Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as expanded in 2005. It lets the secretary set aside environmental, historic preservation and other laws to speed barriers in areas of high illegal entry. Courts have repeatedly rejected claims that Congress delegated too much, and the law sets a short review path: constitutional claims only, filed within 60 days, with appeals going straight to the Supreme Court by petition for certiorari rather than through a circuit court.

Cardone’s ruling attacked the waivers on a newer theory. She found they lacked the clear congressional authorization the major questions doctrine demands, according to Reuters, and read the statute as limited to areas of high illegal entry, USA Today reported. “Therefore, if the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire US-Mexico border,” she wrote, as quoted by Reuters. Both outlets reported her finding that Big Bend has the fewest migrant apprehensions of any southwest border sector.

The Justice Department answered that Cardone had no authority to rule on a statutory claim at all, since the law allows waiver challenges only on constitutional grounds, USA Today reported. “Congress was hardly shy about the major powers it granted the Secretary,” the government told the justices.

An emergency stay is not a ruling on the merits, and the order does not say the waivers are lawful. It does signal that a majority found the government likely enough to prevail, and the balance of harms tilted enough its way, to let crews work in the meantime. That mirrors the Court’s July 2019 order in Trump v. Sierra Club, which let wall construction proceed while a funding fight continued. The practical effect is that barriers can go up long before any final answer on whether the major questions doctrine can constrain the waiver statute.

What the order means on the ground

Most of the planned construction is on private land, Reuters reported, citing the administration. Inside Big Bend National Park itself, the plan calls for a 17-mile noncontiguous vehicle barrier system rather than the 30-foot pedestrian wall planned elsewhere, according to the same report. Work in the park had already been paused in August after protests and criticism from members of both parties, Reuters and USA Today reported, so the pace there may turn on DHS choices as much as on the courts.

The bigger consequence is legal. Because the waiver statute routes appeals straight to the justices, the Supreme Court will be the next stop for whichever side loses the final judgment in El Paso. If the major questions theory survives, every future waiver along the border could face the same kind of challenge; if it fails, the 1996 power stays as broad as DHS has long treated it. The order lands as the Justice Department is also asking the Court to rein in sweeping lower-court remedies and the White House signals no slowdown in enforcement after the midterms.

The case itself stays alive, and the challengers can still press their claims in district court on a full record. Alongside matters such as Nielsen v. Watanabe, it will test how this term’s Court weighs executive power at the border against judicial checks.

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

Sources

Vasanth Vaidyanathan, Esq.

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Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego 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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