Supreme Court Lets Border Wall Work Resume in Texas's Big Bend, Saying Judge Lacked Power to Hear Challenge
In an unsigned order, the justices said a law that lets the homeland security secretary waive environmental rules also bars courts from hearing claims that he exceeded his authority.
The Supreme Court on Monday allowed the Trump administration to resume building border barriers and roads in the Big Bend region of West Texas, setting aside for now a federal judge's order that had halted the project.
In an unsigned opinion issued Nov. 9, the court said the government was "exceedingly likely to prevail" on its argument that the trial judge lacked jurisdiction over the challengers' main claim. Justice Ketanji Brown Jackson noted that she would have denied the government's request. She did not explain why.
The order stays the judge's preliminary injunction while the government seeks full Supreme Court review. If the court declines to take the case, the stay ends automatically, according to the opinion.
A broad waiver, and a narrow door to court
The dispute turns on Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. As the Supreme Court described it, the law gives the secretary of homeland security authority "to waive all legal requirements" as "necessary to ensure expeditious construction" of border barriers and roads. The same law says a claim "may only be brought alleging a violation of the Constitution of the United States," and that courts "shall not have jurisdiction" over other claims, the opinion said.
Between February and July 2026, the department issued a series of waivers covering dozens of laws, mainly environmental laws, along a 517-mile stretch of the border, according to a memorandum opinion by U.S. District Judge Kathleen Cardone of the Western District of Texas. The area includes Big Bend National Park, Big Bend Ranch State Park and other public and private land in six Texas counties, the judge wrote.
The challengers, identified in the district court filing as the Center for Biological Diversity, Friends of the Ruidosa Church and a river guide, Danny William Miller Junior, argued that the waivers violated what they called "the major questions doctrine under the U.S. Constitution." That doctrine holds that Congress must speak clearly when it gives an agency power over matters of vast economic or political significance.
Judge Cardone agreed that the claim could proceed and, on Oct. 2, barred construction in the Big Bend Sector "until and unless" the government complied with the laws it had waived. In her Oct. 14 opinion, she wrote that while the sector "comprises over 25% of the U.S.-Mexico border," annual apprehensions there over the past 30 years "fluctuated between 0.3% and 2.2% of total border-wide apprehensions." She concluded that "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 U.S.-Mexico border."
'No such thing'
The Supreme Court did not address whether the waivers were lawful. It held instead that the challengers' claim, "however it is labeled," alleged only that the secretary had exceeded his statutory authority, which the 1996 law places outside the courts' reach.
The major questions doctrine, the court said, is a tool for interpreting statutes, not a freestanding constitutional rule. "There is no such thing as a 'constitutional' major-questions claim," the opinion said.
The justices also found that the other factors courts weigh in deciding whether to pause a lower-court order favored the government. They cited a declaration from a U.S. Customs and Border Protection official stating that the injunction was costing the government "nearly half a million dollars in costs per day," money the opinion said "cannot be recouped." The court wrote that the government's interest "outweighs any aesthetic, recreational, and environmental harm alleged by respondents."
Because the 1996 law routes these cases directly from the district court to the Supreme Court, the Fifth Circuit lacked jurisdiction, and the solicitor general asked the justices either to reverse the judge outright or to pause her order. The court granted the pause, the opinion shows. SCOTUSblog reported that the justices declined the request for summary reversal.
In a filing quoted by SCOTUSblog, a lawyer for the challengers, Eric Glitzenstein, had warned that lifting the order would let the government "immediately resume blasting, bulldozing, road construction, and other border barrier-related construction" across the region.
What comes next
The government may now file a petition asking the court to hear the case in full. The ruling leaves standing a statutory scheme in which, by the court's reading, a cabinet secretary can set aside federal environmental and conservation laws for border construction and district courts may hear only constitutional objections to that choice.