Regional advocacy group and local plaintiffs sue DHS in hopes of slowing border wall construction
By Sam Karas
Last Thursday, the Tucson-based Center for Biological Diversity, local nonprofit the Friends of Ruidosa Church, and Terlingua river guide Billy Miller filed a federal lawsuit against the Department of Homeland Security (DHS) for an alleged breach of constitutional powers over the agency’s widespread use of waivers to facilitate border wall construction. The suit was filed in the Western District of Texas—which includes the Big Bend—and will be heard by Judge Kathleen Cordone of the district’s El Paso division.
The suit takes issue with a Federal Register posting from October authorizing former DHS Secretary Kristi Noem to waive dozens of laws regulating government contracting and financial transparency and a second posting in February waiving dozens of environmental and cultural resource protection laws. In their complaint, the plaintiffs argue that Noem’s use of these waivers upends the constitutional balance of power between the executive and legislative branches and violates locals’ civil rights by “eliminating access to the Rio Grande without any due process.”
The three plaintiffs each bring a unique perspective to these legal issues. The Center for Biological Diversity, which boasts a handful of local members, honed in on native species and their habitats, while the Friends of Ruidosa Church focused on historical and cultural resources. Miller, the lone individual in the suit, stressed economic impacts and the effects on property owners.
The three plaintiffs are represented by Alana Park, Dustin Rynders and Kate Kumar of the Texas Civil Rights Project, who sketched out a history of the federal government’s use of waivers to speed up construction along the border. “That assertion of sweeping authority—effectively to serially displace multiple statutory regimes across vast geography in service of an unmandated and controversial border-wide barrier bisecting the entire North American continent––threatens the carefully wrought architecture of our Constitution’s separation of powers,” they explained.
The complaint’s timeline begins in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which “waive[d] all legal requirements” that the attorney general deemed necessary to ensure “expeditious construction” of border barriers “to deter illegal crossings in areas of high illegal entry.” Portions of the IIRIRA were updated after the Department of Homeland Security was established in 2002 and were codified in the REAL ID Act of 2005, which expanded the list of laws the government was able to waive and confines challengers to seeking review directly from the Supreme Court.
In 2006, the Bush administration passed the Secure Fence Act, which set the legal groundwork for “installation of additional physical barriers, roads, lighting, cameras and sensors” that could include a double layer of border wall in certain areas. The Secure Fence Act encompassed “not less than 700 miles” of the U.S.-Mexico border, which stretches 1954 miles in total.
The plaintiffs in last Thursday’s suit argue that the Trump administration has taken a legally-shaky remnant of the Global War on Terror and run with it beyond its constitutional purview. Between 2005 and 2016, the Bush and Obama administrations used such waivers five times. In his first term, Trump sought waivers under Section 102(c) of the IIRIRA more than 50 times to expedite construction of a coast-to-coast “Great Wall,” which he promised during his campaign would be bankrolled by the Republic of Mexico.
In Trump’s second term, the pattern of alleged overreach continued, with nine new 102(c) waivers issued in October of 2025 to leave the length of the U.S.-Mexico border open for construction. “As a result, the entirety of the border, from California through Arizona, New Mexico, and Texas, has been deemed an ‘area of high illegal entry,’” the plaintiffs stated.
Over the past few years, politicians have attempted to expand these powers even further. In 2023, Representative Mario Diaz-Balart of Florida and Sen. Ted Cruz of Texas introduced the Secure the Border Act, which would have mandated the resumption of border wall construction and would have tweaked the law to require, rather than suggest, legal waivers. That legislation did not pass—but in practice, waivers have become the law of the land.
The suit posits that the “national emergency” at the southern border the Trump administration is using to justify suspending normal rule and order is a hoax, pointing to the Big Bend Sector’s typically low arrest data. Can the government reasonably claim that 89,000 Border Patrol apprehensions over the course of five years—representing about 1% of arrests at the southern border in total—constitute an “attack” against the United States?
The complaint claims these numbers don’t justify a project of this immensity, “not merely an infrastructure project but a transformation of the continent itself,” nor do they justify cutting the public out of a decision-making process they’d typically be entitled to. “Spanning North America, [the wall] would sever ancient migration routes, fragment watersheds, bisect large mammal populations, and permanently interrupt ecological and geological processes that have developed over millennia,” the complaint reads. “Decisions of this magnitude do not fall easily to unelected executive bodies under the carefully wrought architecture of the U.S. Constitution.”