The US Supreme Court on Monday 9 November allowed the Trump administration to proceed with border wall construction in the Big Bend region of West Texas, including work in and around Big Bend National Park. The court granted the government’s emergency request to lift a lower court injunction that had paused construction while a lawsuit against the project plays out. The ruling is a practical win for the administration now, but it is not a final decision on whether the project is lawful.
The order was unsigned, and it came in the case known as Friends of the Ruidosa Church v Mullin, emergency application number 26A560. Justice Ketanji Brown Jackson was the only justice to note a dissent publicly, according to reports of the ruling, and she did not write an opinion explaining it. The court has a 6 to 3 conservative majority, and the other justices did not record dissents.
The lawsuit was brought by the Center for Biological Diversity, a Big Bend area river guide and landowner, and a group seeking to preserve a historic church in Ruidosa, Texas. The group says the fragile adobe structure of the church is threatened by the border construction. The challengers sought to block the work by targeting waivers issued by the Department of Homeland Security that sidestep environmental protections and conservation laws.
The lower court order that was lifted
US District Judge Kathleen Cardone in El Paso blocked the construction in October, with an injunction issued on 2 October. Judge Cardone noted that the Big Bend sector makes up more than 25 percent of the US Mexico border but accounts for only 0.3 to 2.2 percent of migrant apprehensions. She also said a temporary halt was needed while the legal battle continues because construction could result in the permanent loss of protected wilderness that benefits tourism, recreation, farming, ranching, spirituality, aesthetic sensibilities and education.
The Supreme Court disagreed for now. In a five page decision issued on Monday, the court wrote that the federal judge who ruled on the order did not have the authority to weigh in, and it said the law at issue likely precludes judicial review of the claims brought in the lawsuit. The court said the government was exceedingly likely to win its argument that there is no constitutional issue at stake.
The court also said the injunction impedes the government from advancing its compelling interests in border security and integrity. In the words reported from the ruling, the government’s interest outweighs any aesthetic, recreational and environmental harm alleged by the challengers. The court added that Congress has expressed a clear preference for expeditious border construction, which outweighs that alleged harm.
Waivers and the scale of the work
The waivers at the centre of the case were issued by the Department of Homeland Security to expedite construction of roads and barriers in the Big Bend region, avoiding the application of a variety of environmental and conservation laws. They were issued under a 1996 federal law aimed at facilitating barrier construction in areas of high illegal crossings at the southern border. The power comes from Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as expanded in 2005.
Homeland Security Secretary Markwayne Mullin and his predecessor Kristi Noem, both Trump appointees, issued the waivers between February and July. They found the region to be an area of high illegal entry, requiring additional barriers to control the border. According to the Center for Biological Diversity, the waivers marked the first time the federal government swept aside a broad slate of environmental laws, including the Endangered Species Act, the National Wild and Scenic Rivers Act and the National Park Service Organic Act, inside a national park.
The scale is large. The Big Bend region spans 517 miles, more than a quarter of the entire US Mexico border. The administration said most of the construction in the Big Bend sector, spanning more than 300 miles, will take place on privately owned land. Big Bend National Park would get a 17 mile noncontiguous vehicle barrier system, but not the kind of 30 foot pedestrian barrier slated for other areas, according to the administration. The Center for Biological Diversity said the ruling allows work to resume in Big Bend National Park and along more than 500 miles of the Rio Grande, and that construction could also begin in Big Bend Ranch State Park.
Why the project had already paused
The administration itself paused construction in Big Bend in August after the project drew bipartisan criticism over its potential impact on the park’s landscape and wildlife. Members of both parties had raised concerns about building through a stretch of public land known for sweeping canyons and unspoiled desert landscape. That pause came before Judge Cardone’s October injunction, which then kept the work halted for about a month.
President Donald Trump has long presented building or reinforcing barriers along the US Mexico border as a signature part of his immigration policy. The Big Bend decision fast tracks one of those longstanding priorities, at least for now, in a remote region where the terrain is rugged and apprehensions are low compared with other sectors. Supporters of the project point to border security, while critics point to the environmental cost and the low number of crossings in the sector.
The case itself stays alive. The Supreme Court ruling suspends the district court’s injunction while the lawsuit proceeds, and it is not a final ruling on the legality of the sweeping waiver of environmental laws. An emergency stay is not a ruling on the merits, and the order does not say the waivers are lawful. The challengers can still press their claims in district court on a full record, and the harder question of how far the Homeland Security secretary’s power to waive federal law at the border reaches is left for later.
