Plaintiffs challenging the Trump administration's border wall construction in Texas's Big Bend region asked the Supreme Court on Thursday to preserve a federal trial judge's order halting the project.
U.S. District Judge Kathleen Cardone in El Paso issued a temporary restraining order on October 2 blocking the Department of Homeland Security from continuing construction. On October 14, Cardone explained that the challengers were likely to succeed on their claim that the major questions doctrine bars the waivers.
The dispute involves three waivers issued by then-Homeland Security Secretary Kristi Noem and her successor Markwayne Mullin under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That statute grants the Secretary of Homeland Security power to "waive all legal requirements" necessary "to ensure expeditious construction" of border walls. Noem and Mullin invoked this authority to authorize construction in Big Bend, including within Big Bend National Park, claiming the area has "high illegal entry."
Cardone ruled that the major questions doctrine requires clear congressional authorization for such sweeping exercises of power. She noted that although Big Bend comprises over 25% of the U.S.-Mexico border, it accounts for only 0.3% to 2.2% of border apprehensions. She concluded that if Big Bend qualifies as an area of "high illegal entry," then every border sector would qualify, rendering Congress's limiting language meaningless.
U.S. Solicitor General D. John Sauer argued on October 21 that the district court lacked power to consider the major questions doctrine claim and that Congress clearly authorized the Secretary to build barriers and waive legal requirements for expeditious construction. The plaintiffs' Thursday filing countered that "the decision to waive myriad federal, state, local, and tribal laws across vast geography for the purpose of building border infrastructure" represents an extraordinary and unauthorized assertion of power. The plaintiffs also argued DHS suffered no permanent harm from temporary delays, noting the agency "voluntarily paused construction for weeks" before Cardone's order in response to local opposition.