Supreme Court lets border wall work resume in Big Bend

The Supreme Court on Nov. 9 paused a federal judge’s order that had halted border wall construction across the Big Bend region of Texas, clearing the way for the Department of Homeland Security to resume work in an area that includes parts of Big Bend National Park.

In an unsigned, four-page opinion in Mullin v. Friends of the Ruidosa Church, No. 26A560, the Court granted the government’s request for a stay. Justice Ketanji Brown Jackson wrote only that she “would deny the application for stay.” No other dissent is noted in the order.

The Court did not rule on whether the waivers behind the wall are lawful. It ruled that the trial court probably never had the power to hear the claim that blocked them.

A 1996 immigration law, Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act, lets the Homeland Security secretary “waive all legal requirements” the secretary finds necessary for fast construction of border barriers and roads. The law says courts may hear only claims alleging a violation of the Constitution. The Court wrote that the government “is exceedingly likely to prevail” on its argument that the district court lacked jurisdiction over the challengers’ claim.

That claim invoked the major questions doctrine, a rule that says Congress must speak clearly before an agency claims vast power. The challengers had called it a constitutional claim. The Court disagreed. “There is no such thing as a ‘constitutional’ major-questions claim,” the order says, because the claim only alleges that the secretary exceeded his statutory authority.

Homeland Security Secretary Markwayne Mullin and his predecessor, Kristi Noem, issued three waivers of environmental and conservation laws for the Big Bend Sector, SCOTUSblog reported. The challengers are an individual river guide, an environmental nonprofit, and a nonprofit organized to preserve a historic church in Ruidosa, Texas. They sued in the U.S. District Court for the Western District of Texas.

On Oct. 2, Judge Kathleen Cardone entered a preliminary injunction that blocked the waivers and halted associated construction. In an opinion dated Oct. 14, she found the challengers likely to succeed on the claim that the secretary lacked clear congressional authorization, SCOTUSblog reported. She also wrote that the Big Bend area makes up more than 25% of the U.S.-Mexico border but accounts for a small share, 0.3% to 2.2%, of apprehended crossers, according to SCOTUSblog. She declined to pause her order so the government could seek Supreme Court review.

Solicitor General D. John Sauer asked the justices either to reverse the order outright or to stay it. He argued that Cardone had no power to hear the major questions claim and that Congress clearly authorized the secretary to build barriers and waive laws. The Court granted the stay, and SCOTUSblog reported that it denied the request for summary reversal.

The justices cited a declaration from a Customs and Border Protection official, who said the injunction was costing the government nearly half a million dollars per day that “cannot be recouped” if the government wins. The order said the injunction delayed the government’s “compelling interests” in border security.

The Court also weighed the challengers’ stated harms, which it described as a diminished ability to use and enjoy the area. It wrote that Congress’s decision to let the secretary waive environmental and conservation laws “reflects a clear preference for expeditious border construction over the very harms respondents assert.” The government’s interest, the order says, outweighs “any aesthetic, recreational, and environmental harm alleged by respondents.”

The order cites the waiver notices in the Federal Register, including 91 Fed. Reg. 7298, 27969 and 46939, as the basis for the Big Bend project.

The stay remains in effect while the government files and the Court decides a petition for a writ of certiorari, if the government seeks one. If the Court denies review, the stay ends automatically. If it grants review, the stay ends when the Court sends down its judgment.