The Trump administration returned to the Supreme Court on Wednesday afternoon, asking the justices to allow it to resume construction of its border wall in the Big Bend region of southwestern Texas. U.S. Solicitor General D. John Sauer called the order by a federal trial judge in El Paso temporarily halting the construction “baseless” and “unprecedented.”
During President Donald Trump’s first campaign and his first term in office, his efforts to build a wall along the U.S. border with Mexico were a central part of his immigration agenda. President Joe Biden largely stopped construction when he took office in 2021.
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Secretary of Homeland Security has the power to “waive all legal requirements” necessary “to ensure expeditious construction” of border walls and roads. Moreover, federal courts can only hear challenges to such waiver decisions if they allege a violation of the Constitution.
Trump sought to resume construction efforts when he returned to office in 2025. In 2026, Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued three waivers of various environmental and conservation laws to allow construction of the border wall in the Big Bend region, including areas in Big Bend National Park. This region comprises almost one-fourth of the U.S.-Mexico border. Noem and Mullin determined that additional border barriers are required in the Big Bend area because it “is an area of high illegal entry”: Sauer states that, in the four-year span between 2021 and 2025, U.S. Customs and Border Protection apprehended more than 89,000 immigrants there who were attempting to illegally enter the United States.
An environmental group, a local landowner, and a group formed to preserve a church went to federal court, challenging the legality of the waivers. On Oct. 2, U.S. District Judge Kathleen Cardone temporarily barred the Department of Homeland Security from continuing construction on the border wall in the Big Bend region “until and unless” the government complies with environmental and other applicable laws.
Cardone issued a written opinion detailing her reasoning on Oct. 14. She explained that the challengers were likely to prevail on their claim that, under the major questions doctrine (which is the idea that if Congress intends to give a federal agency the power to make decisions of vast economic or political significance, it must say so explicitly), the DHS secretary did not have the power to issue the waivers. First, she rejected the government’s suggestion that she did not have the authority to consider the challengers’ claims because they involved a statute, rather than the Constitution. The major questions doctrine, she said, is a “constitutional … rule” based on the idea that “courts should expect Congress to speak clearly when it delegates major lawmaking authority to the executive.” Because Congress had only given the DHS secretary the power to waive the otherwise applicable legal requirements “to deter illegal crossings in areas of high illegal entry into the United States,” she wrote, and “the evidence shows that the Big Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border,” Congress could not have given clear authorization for the Big Bend waivers.
The Trump administration came to the Supreme Court on Wednesday, asking the justices to pause the district court’s order and to grant review and summarily reverse it. First, Sauer argued, the district court did not have the power to consider the challengers’ claim based on the major questions doctrine because that claim in their complaint alleged that the DHS secretary “lacked ‘clear congressional authorization’ … to issue the waivers” under the IIRIRA. “As this Court has long held,” Sauer continued, “a claim that alleges that an Executive Branch official acted ‘in excess of his statutory authority’ is not a claim alleging a ‘violation of the Constitution,’” and Congress specified in the IIRIRA that waivers are only subject to constitutional challenges.
But, Sauer wrote, “[e]ven assuming that the Secretary’s waiver authority implicates a question of ‘vast economic and political significance,’ Congress did clearly authorize the Secretary both to build border barriers and to waive legal requirements in order to facilitate their expeditious construction.”
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[ H/T SCOTUSblog ]
