The plaintiffs challenging new construction in Texas’ Big Bend region asked the justices to keep a lower court order in place, urging the Supreme Court border wall fight to remain paused while their lawsuit proceeds. Their filing warns that lifting the injunction would enable federal crews to immediately resume blasting, bulldozing, road work, and other barrier activities across a remote and culturally and ecologically significant landscape.
The dispute turns on three waivers of environmental and conservation laws issued earlier this year by then–Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, to authorize work in the Big Bend sector, including areas in Big Bend National Park. The secretaries relied on a provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that allows the Department of Homeland Security to waive legal requirements to ensure rapid construction of border walls and roads.
In issuing the waivers, they concluded the Big Bend area needs additional barriers because it is an area of high illegal entry. An environmental organization, a local landowner, and a group dedicated to preserving a church sued in federal court to challenge the legality of those waivers.
On Oct. 2, U.S. District Judge Kathleen Cardone in El Paso temporarily barred DHS from continuing construction in the Big Bend region until the government complies with environmental and other applicable laws. In an Oct. 14 opinion explaining her decision, Cardone wrote that the challengers are likely to succeed under the major questions doctrine.
That doctrine holds that when Congress intends to give an agency power over issues of vast economic or political significance, it must do so clearly. Cardone first rejected the government’s contention that the court lacked authority to hear the claims because they arise under statute and the IIRIRA limits judicial review of waiver decisions to constitutional challenges.
She characterized the major questions doctrine as a constitutional rule that expects Congress to speak clearly when delegating major lawmaking authority to the executive. Turning to the merits, Cardone noted both sides appeared to agree that waiving all legal requirements to build a border wall in the Big Bend sector is a matter of major economic and political significance.
The question, she wrote, is whether Congress clearly authorized the DHS secretary to issue these waivers. Reading IIRIRA’s waiver clause alongside a separate provision permitting DHS to take actions necessary to install additional physical barriers and roads to deter illegal crossings in areas of high illegal entry, she concluded the secretary may only waive legal requirements for construction aimed at deterring crossings in such high-entry areas.
Cardone determined Big Bend does not meet that threshold. Although the region covers more than a quarter of the U.S.–Mexico border, she wrote, it accounts for only a small fraction, between 0.3% and 2.2%, of apprehensions.
If Big Bend qualifies as an area of high illegal entry, she reasoned, then every other sector would as well, effectively erasing the statute’s limiting language, which the major questions doctrine counsels against. On Oct. 21, the administration asked the Supreme Court to pause Cardone’s order and to grant review and summarily reverse it.
U.S. Solicitor General D. John Sauer argued that the district court lacked power to entertain the challengers’ claim because it is, at bottom, a statutory challenge that Congress forbids district courts from hearing under IIRIRA. He added that even if the secretary’s waiver authority implicates an issue of vast significance, Congress clearly authorized both the construction of border barriers and the waiving of legal requirements to facilitate speedy construction.
In their Thursday brief, the challengers maintained that the major questions doctrine applies, calling the waivers an extraordinary assertion of power that sweeps aside federal, state, local, and tribal laws over a vast area, including national and state parks where crossings are minimal. They contend Congress did not clearly authorize such a sweeping exercise of authority, so the government’s actions violate the major questions doctrine.
They also argued DHS would not face lasting harm if construction remains on hold, noting that prior to Cardone’s order, DHS had already voluntarily paused work for weeks across large portions of the project area in response to intense local opposition.
What the Supreme Court border wall dispute means next
The justices are weighing whether to lift the injunction while the case proceeds. For Hawaiʻi readers tracking national border and public lands policy, the outcome could shape how agencies use waiver powers on projects with environmental and cultural impacts far from the islands.
The case is one of several high-profile matters on the Supreme Court’s emergency docket this term, alongside other immigration and administrative law disputes that could further define the scope of agency authority. Earlier this month, the court’s interim orders included other border wall and immigration cases, underscoring how frequently these questions are reaching the justices.
Big Bend National Park, part of the broader Big Bend sector, is managed by the National Park Service, which has raised concerns in past projects about the ecological and cultural impacts of border infrastructure on protected lands. The Department of Homeland Security, led by the Office of the Secretary of Homeland Security, maintains that additional barriers are needed to address unlawful crossings even in remote terrain.
