Supreme Court Lifts the Order That Froze Big Bend Border Work

The Supreme Court on Monday stayed a lower-court order that had halted border barrier and road construction in the Big Bend Sector of Texas, including land near Big Bend National Park. The stay lasts while the government seeks Supreme Court review of the case.

The ruling is a stay, not a final verdict. In an unsigned per curiam order in Mullin v. Friends of the Ruidosa Church, the Court stayed a preliminary injunction issued Oct. 2. It did not decide whether the project is lawful. The Associated Press called it an 8-1 decision, according to a search snippet of its report. The order itself records only one justice's position: Justice Ketanji Brown Jackson would have denied the stay.

The order means the injunction no longer blocks the work while the larger fight plays out in court.

A 1996 Law Did the Heavy Lifting

The case turns on Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act, passed in 1996 and amended since. The law gives the Secretary of Homeland Security waiver power and limits court review to constitutional claims.

The Secretary, named in the caption as Markwayne Mullin, found the Big Bend Sector an "area of high illegal entry" and waived environmental and conservation laws for the project, according to the order. The challengers were a river guide, an environmental nonprofit, and a nonprofit that preserves a historic church in Ruidosa, Texas. They sued in the Western District of Texas, in a case numbered 3:26-cv-01099, and brought what the order describes as a "major questions doctrine" claim.

The Court addressed that claim directly. The order said: "There is no such thing as a 'constitutional' major-questions claim."

The Solicitor General asked the Court for either a summary reversal or a stay, arguing that the Fifth Circuit lacks jurisdiction under Section 102(c)(2)(C).

Half a Million Dollars a Day

Money figured in the Court's reasoning. According to the order, a Customs and Border Protection declaration says the injunction costs nearly half a million dollars per day, which cannot be recouped. In weighing the stay, the Court wrote: "The Government's interest therefore outweighs any aesthetic, recreational, and environmental harm alleged by respondents."

The AP reported, per a search snippet, that Congress funded the project with $46 billion last summer. CBP told Newsweek, "We are working with the Department of Justice on next steps."

What exactly will be built near the national park is still unclear. ABC News reported, per a search snippet, that after public outcry, plans for the park were changed from a physical wall to vehicle barriers, roads, and surveillance. Some outlets still describe the whole effort as a wall. That difference has not been cleared up.

The Judge and the Politics

The Supreme Court's order does not name the trial judge. According to search snippets of AP and UPI reports, she is U.S. District Judge Kathleen Cardone, and the Daily Caller reported the same, citing the New York Times. The Daily Caller said Cardone was appointed by President George W. Bush.

The Daily Caller also noted that the Court's order came less than a week after Texas elected Democrat Gina Hinojosa as governor, the party's first win in that office in more than three decades. Democrats also took the Texas House and all other statewide offices up for election, the outlet reported.

Newsweek reported, per a search snippet, that bulldozers were seen at Big Bend National Park in August. The injunction came on Oct. 2.

What Comes Next

The stay remains in place while the government seeks Supreme Court review through a petition for certiorari. According to the order, if the Court denies the petition, the stay ends automatically. If it grants review, the stay ends when the judgment is sent down. No filing date for the petition has been confirmed. The underlying lawsuit continues in the Western District of Texas, so the river guide and the two nonprofits can keep pressing their case there.