Justices rule 8-1 that a federal court likely lacked jurisdiction to block construction under a 1996 immigration law, allowing the Trump administration to resume work while litigation continues.
The U.S. Supreme Court has cleared the way for the Trump administration to resume construction of border barriers, patrol roads and related infrastructure across the Big Bend region of West Texas, suspending a federal judge’s injunction that had halted work over concerns about the administration’s authority to bypass environmental protections.
In an unsigned decision issued Monday, Nov. 9, the justices granted the federal government’s emergency request to stay an Oct. 2 preliminary injunction issued by U.S. District Judge Kathleen Cardone in El Paso. Justice Ketanji Brown Jackson was the only justice to publicly oppose the stay.
The decision in Mullin v. Friends of the Ruidosa Church, No. 26A560, does not end the underlying lawsuit or constitute a final ruling on the legality of the construction project. It does, however, remove the immediate judicial restriction that prevented the Department of Homeland Security from proceeding with construction throughout the U.S. Border Patrol’s Big Bend Sector.
The Supreme Court concluded that the federal government was exceedingly likely to prevail on its argument that the district court lacked jurisdiction to consider the plaintiffs’ principal legal challenge. The justices relied on a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that gives the homeland security secretary broad authority to waive legal requirements to expedite border barrier construction while sharply restricting judicial review of those decisions.
Under the statute, federal district courts may hear constitutional challenges to the secretary’s waiver decisions but generally cannot consider claims alleging only that the executive branch exceeded its authority under federal law.
The plaintiffs, including the Center for Biological Diversity, Friends of the Ruidosa Church and river guide Danny William Miller Jr., argued that the administration had exceeded its authority under what is known as the major questions doctrine. That legal principle requires clear congressional authorization when federal agencies assert powers of extraordinary economic or political significance.
Cardone had determined that the doctrine was sufficiently rooted in the Constitution’s separation of powers to permit judicial review. The Supreme Court disagreed, concluding that invoking the doctrine did not transform a statutory dispute into a constitutional claim.
The justices wrote that the plaintiffs were alleging that the secretary exceeded statutory authority, rather than identifying a violation of the Constitution itself. The court stated that there is no such thing as a constitutional major questions claim for purposes of the jurisdictional issue presented in the case.
Government cited border security and $500,000 in daily costs
The Supreme Court also accepted the federal government’s arguments that continued delays would interfere with border security operations and impose substantial financial costs.
According to the decision, a U.S. Customs and Border Protection official submitted a sworn declaration estimating that the injunction was costing the federal government nearly $500,000 per day. Those expenses, the government argued, could not be recovered even if it ultimately prevailed in court.
The justices found that the government’s border security interests, together with the unrecoverable financial costs, supported lifting the injunction.
The court also addressed the environmental, recreational and aesthetic harms identified by the plaintiffs, concluding that Congress had already established a statutory preference for expedited border construction when it authorized the secretary to waive otherwise applicable legal requirements.
“The Government’s interest therefore outweighs any aesthetic, recreational, and environmental harm alleged by respondents,” the court wrote.
Federal judge questioned whether Big Bend qualifies as an area of high illegal entry
The dispute centers on whether the administration can invoke extraordinary waiver powers in a region that has historically experienced some of the lowest levels of illegal border crossings along the southern border.
In her Oct. 14 written opinion explaining the injunction, Cardone examined the language of the 1996 law, which authorizes additional barriers and roads to deter illegal crossings in areas of high illegal entry.
The government argued that the Big Bend Sector qualified because more than 89,000 people had been apprehended attempting to enter the United States illegally between 2021 and 2025. Cardone acknowledged that the total was undisputed but examined the figures in comparison with other Border Patrol sectors.
According to evidence cited in her opinion, the Big Bend Sector accounts for more than one-quarter of the U.S.-Mexico border but has historically represented only 0.3% to 2.2% of annual apprehensions along the southern border over the past 30 years.
The judge found that Big Bend had the lowest apprehension totals and the lowest apprehension rate per mile of any southern border sector. She also examined drug seizure statistics, noting that some seizures attributed to the sector occurred at interior highway checkpoints rather than necessarily at the international boundary.
Cardone concluded that interpreting the law to include the sector with the lowest illegal-entry rate would effectively eliminate Congress’ distinction between areas of high and low illegal entry.
She determined that the plaintiffs were likely to succeed in showing that the administration had exceeded its authority by invoking the waivers in Big Bend.
The Supreme Court’s Nov. 9 decision did not independently resolve whether Big Bend qualifies as an area of high illegal entry. Instead, it focused on whether the district court had legal authority to consider the plaintiffs’ challenge in the first place.
Construction affects national park and surrounding counties
The litigation concerns construction throughout the 517-mile Big Bend Sector, which includes portions of Hudspeth, Jeff Davis, Presidio, Brewster, Terrell and Val Verde counties.
The affected area encompasses Big Bend National Park, Big Bend Ranch State Park and other public and private lands. The government’s construction program includes physical barriers, vehicle barriers, patrol roads and related enforcement infrastructure.
To facilitate the projects, the Department of Homeland Security issued a series of waivers between February and July 2026 suspending the application of numerous federal legal requirements, principally environmental and conservation laws.
Those waivers included measures covering western portions of the sector, Big Bend National Park and the Lower Canyons region. The district court’s injunction had suspended the effect of all three sets of waivers and prohibited construction and ground-disturbing activities throughout the sector unless the government complied with otherwise applicable laws.
Environmental organizations have opposed the construction, citing potential damage to desert ecosystems, wildlife habitat, river corridors and historic sites. Federal contractors began ground-disturbing work in portions of Big Bend National Park in August, including areas near Santa Elena Canyon and Mariscal Canyon.
The National Parks Conservation Association, which supported the plaintiffs’ challenge, criticized the Supreme Court’s ruling and urged the administration to pursue alternatives that would avoid additional damage to protected landscapes.
What happens next?
The Supreme Court’s order temporarily suspends the district court’s injunction while the federal government pursues further review.
Under the terms of the order, the stay remains in effect while the government files and the Supreme Court considers a timely petition for a writ of certiorari, a request for the justices to review the underlying case.
If the Supreme Court declines to hear the case, the stay will automatically terminate. If the justices agree to hear it, the stay will remain in effect until the court issues its judgment through the prescribed process.
The Nov. 9 order does not dismiss the lawsuit, resolve every constitutional claim or permanently validate the administration’s waiver decisions. It permits construction to proceed while those legal questions remain unresolved.
For Big Bend residents, property owners, environmental advocates and visitors, the immediate consequence is that the federal government is no longer restrained by Cardone’s October injunction from proceeding with the projects covered by the ruling.
The broader legal dispute over the federal government’s authority to bypass environmental protections in the Big Bend region remains pending.
