Trump administration asks justices to allow border wall construction to continue

The Trump administration wants the Supreme Court to lift a federal judge’s temporary construction ban in southwestern Texas. It also asks the justices to review the case and summarily reverse the judge’s decision. The dispute matters because it tests how much authority the administration has to bypass legal requirements for border barriers.

U.S. District Judge Kathleen Cardone ordered the Department of Homeland Security to stop construction in the Big Bend region “until and unless” it complies with environmental and other applicable laws. She found that the challengers were likely to succeed under the major questions doctrine. The challengers included an environmental group, a local landowner, and a group formed to preserve a church.

Solicitor General D. John Sauer called Cardone’s order “baseless” and “unprecedented.” He argues that the 1996 immigration law clearly allows the DHS secretary to build barriers and waive legal requirements. If the Supreme Court grants the request, construction could restart while the legal fight continues.

The Big Bend region is an area of southwestern Texas along the U.S.-Mexico border. The article identifies it as a large border sector that includes areas inside Big Bend National Park. That location makes the proposed construction especially significant because barriers would affect land covered by environmental and conservation protections.

Construction would take place in the Big Bend region, including portions of Big Bend National Park. Homeland Security Secretaries Kristi Noem and Markwayne Mullin issued three waivers covering various environmental and conservation laws. Those waivers were intended to allow border-wall construction to move forward more quickly.

The administration says additional barriers are needed because Big Bend is “an area of high illegal entry.” The challengers dispute the legality of the waivers. Judge Kathleen Cardone temporarily stopped construction until the government complies with environmental and other applicable laws. The Supreme Court is now being asked whether that halt should remain in effect.

The Big Bend region represents almost one-fourth of the U.S.-Mexico border. That scale helps explain why the proposed construction has major practical and legal importance. A project in this region would affect a substantial portion of the national border, including areas within Big Bend National Park.

The administration points to more than 89,000 apprehensions in Big Bend during the four-year span from 2021 to 2025. U.S. Customs and Border Protection recorded those apprehensions among immigrants attempting to enter the United States illegally. Homeland Security officials use the figure to support their conclusion that additional barriers are needed.

The district judge reached a different conclusion about the legal authority for the project. She wrote that evidence showed Big Bend had the lowest rate of illegal entry along the entire border. The Supreme Court must consider whether the law clearly authorized waivers for construction in this particular region.

Judge Kathleen Cardone temporarily stopped construction because she believed the challengers were likely to prevail. She concluded that the DHS secretary may not have received clear congressional authorization to issue the waivers under the major questions doctrine. The order bars construction until the government complies with environmental and other applicable laws.

The challengers included an environmental group, a local landowner, and a group formed to preserve a church. They challenged waivers that set aside various environmental and conservation laws. Cardone rejected the government’s argument that federal courts could not hear the case because the challenge involved a statute rather than the Constitution.

Cardone treated the major questions doctrine as a constitutional rule requiring Congress to speak clearly when giving the executive major lawmaking power. She noted evidence that Big Bend had the lowest illegal-entry rate along the border. The administration argues the 1996 law already clearly authorized both barriers and waivers.

Pausing the district court’s order would remove its immediate force. The Department of Homeland Security could then resume construction in the Big Bend region while the courts consider the underlying legal dispute. The administration is seeking that result because it says the construction ban is baseless and unprecedented.

Leaving the order in place would keep construction stopped. Cardone’s order says DHS cannot continue building “until and unless” the government complies with environmental and other applicable laws. The challengers’ case would continue, and the waivers would remain subject to the legal challenge based on the major questions doctrine.

The Supreme Court has also been asked to grant review and summarily reverse Cardone’s decision. Its action could therefore affect both construction and the lower court’s reasoning. The immediate question is whether the administration may proceed before the dispute over congressional authorization and legal waivers is finally resolved.

The major questions doctrine is a rule about agency power. It says that when Congress intends an agency to make decisions of vast economic or political significance, Congress must say so explicitly. The idea is that major lawmaking choices belong to Congress unless lawmakers clearly delegate that authority.

Judge Cardone applied the doctrine to the border-wall waivers. She said Congress gave the DHS secretary power to waive legal requirements “to deter illegal crossings in areas of high illegal entry.” Because evidence showed Big Bend had the lowest illegal-entry rate along the border, she found the authorization potentially unclear for that region.

The administration disputes that reading. Solicitor General D. John Sauer says Congress clearly authorized the secretary to build border barriers and waive legal requirements to speed construction. The Supreme Court’s decision could clarify whether the 1996 law satisfies the doctrine’s demand for clear authorization in this case.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act divides responsibilities among the branches. Congress set the legal framework and gave the DHS secretary authority to waive all legal requirements needed for expeditious border-wall and road construction. The executive branch uses that authority to decide where barriers and waivers are needed.

The secretary’s power is broad, but the statute limits court review. Federal courts can hear challenges to waiver decisions only when challengers allege a constitutional violation. The administration says a claim that an official exceeded statutory authority is not a constitutional claim and therefore belongs outside federal court.

Judge Cardone disagreed with that reading in this dispute. She treated the major questions doctrine as a constitutional rule and considered whether Congress clearly authorized the waivers. The Supreme Court must decide how the statute’s broad executive power fits with its restriction on judicial challenges.