Efforts to stop border barrier construction in the Big Bend suffered a blow on Monday as the Supreme Court lifted a preliminary injunction that had halted wall construction since October 2. The per curiam ruling –– an unsigned opinion not attributed to a specific justice –– will allow construction to continue while a lawsuit brought by an environmental group winds its way through the courts. (Justice Ketanji Brown Jackson indicated that she would have denied the government’s application for a stay.)
In the ruling, the court argued that the construction pause was much more harmful to the government than those suffered by the plaintiffs, which include the Friends of the Ruidosa Church, a local historical nonprofit; river guide Billy Miller; and and the Center for Biological Diversity, an environmental nonprofit, all who claim wall construction could be devastating to the local way of life: “The Government’s interest … outweighs any aesthetic, recreational, and environmental harm alleged by respondents.”
At the heart of the original lawsuit is a special waiver authority granted to the government by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and later strengthened by the Real ID Act of 2005. The waiver authority allows the secretary of the Department of Homeland Security (DHS) to waive “legal requirements” that the secretary “determines necessary to ensure expeditious construction” of barriers and roads on America’s borders in areas of “high illegal entry.”
The Bush administration used the waivers to facilitate the construction of around 700 miles of border fencing, lights and cameras authorized by Congress through the Secure Fence Act of 2007. Then DHS Secretary Michael Chertoff used the waiver authority five times, most extensively in April 2008, when it was used to waive environmental and cultural resource protection laws across 59 discrete project areas, including a 6.6-mile stretch of wall near the Presidio Port of Entry, which was never built. The Obama administration never issued a waiver, and the Biden administration issued two, only to later rescind one.
In a filing presented to SCOTUS, DHS, represented by Solicitor General John Sauer, argued that the Trump administration’s use of the waiver authority in the Big Bend amounted to “a recent example of the secretary using a well-worn tool in his border security toolkit.” The Trump administration has been an enthusiastic user of the waiver authority, using the “well-worn tool” 60 times — more frequently than the Bush administration by a factor of twelve. The list of laws grew, too, and by October 2026 it covered over a hundred unique laws that also include regulations about government contracting and state-level well permitting.
At the heart of the Friends of the Ruidosa Church lawsuit is the phrase “high illegal entry,” which the IIRIRA requires to unlock the waiver authority. For as long as the government has kept data on border crossings, the Big Bend has steadily represented between 1% and 3% of all agency “apprehensions” on the U.S.-Mexico border. In terms of raw numbers, the plaintiffs argue, there are sectors on the U.S.-Canada border that see more illegal crossings. “Big Bend doesn’t play in the same league as the other sectors,” expert witness Adam Isacson, a defense specialist at the Washington Office on Latin America (WOLA), testified in a hearing on October 2.
In early filings, DHS tried to shoot down arguments against the Big Bend’s designation as an “area of high illegal entry,” pointing to statistics that include Fiscal Year 2023, the agency’s year on record. All of the waivers that apply to the Big Bend Sector cite the same data: “Between fiscal year 2021 and July 2025, the United States Border Patrol apprehended over 88,595 illegal aliens attempting to enter the United States between border crossings in the Big Bend Sector. In that same time period, Border Patrol seized over 86,851 pounds of marijuana, over 863 pounds of cocaine, over 12 pounds of heroin, over 1,084 pounds of methamphetamine, and over 94 pounds of fentanyl.”
Judge Kathleen Cardone approved a preliminary injunction at the October 2 hearing, later releasing a memorandum opinion that explained her reasoning in more detail. She agreed with the plaintiffs that the waiver authority was designed to apply to discrete areas of high law enforcement activity and not broad swathes of the border. “If the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire U.S.-Mexico border,” she wrote. “If that were the case, Congress could have simply authorized construction ‘to deter illegal crossings.’ Instead, it authorized construction ‘to deter illegal crossings in areas of high illegal entry.’”
After the preliminary injunction was issued, legal counsel for DHS shifted strategy, arguing that the Big Bend Sector could become a “vulnerable and desirable” area for cartels to operate as segments of wall go up in neighboring sectors. “Leaving a 300-plus-mile gap in border defenses would act as a dangerous magnet for cartels and other bad actors to exploit as other routes close off,” Solicitor General Sauer wrote in his emergency application to SCOTUS.
To make that argument, DHS cites a number of criminal cases covered previously by The Big Bend Sentinel, including the case of Sergio Menchaca Pizarro, a local cartel boss sentenced to life in prison in 2025 after he crossed the river east of Presidio city limits two years prior and was swiftly arrested by law enforcement. In another case from the spring of this year, a Mexican national stole a truck in Presidio and was later killed by law enforcement.
Government filings also include the confusing cases of three men who were apprehended on the same morning in June and charged with carrying firearms, which is illegal for people who have entered the United States without permission. Two of the men will be sentenced in Pecos next week; another is headed for trial in December, with a pending motion to suppress evidence that alleges Border Patrol agents did not offer proper Miranda warnings when assessing the scene.
Fighting the border wall waivers in court is virtually impossible by design –– the first draft of the Real ID Act prohibited any judicial review at all, and was later amended to allow cases “alleging a violation of the Constitution of the United States.” Cardone’s preliminary injunction rests on an interpretation of the “major questions doctrine” –– which holds that individual government agencies do not have the power to make decisions of “vast economic and political significance” without input from the other branches of government –– as a constitutional claim, which Cardone acknowledges is controversial, but argues that DHS’s reluctance to engage on the issue is “unhelpfully reductive” in teasing out a broader statutory debate. “While acknowledging that the law is unsettled, the Court rules that the major questions doctrine is a constitutional clear statement rule grounded in separation of powers,” she explained.
The issue will now return to Cardone’s court while she weighs the other issues presented by the case, which includes four other constitutional issues, including the Fifth Amendment right to due process. In its first filing to SCOTUS, DHS asked the court to consider their application as a petition for certiorari –– in other words, asking for the court to rule on the full case. The court didn’t grant their request, but did invite DHS to file a separate petition, with the caveat that the stay green-lighting construction would be lifted if they formally petitioned for certiorari and were denied.
There are also three other ongoing lawsuits surrounding the Big Bend wall that could decide the fate of the project. A lawsuit brought by river outfitter Angell Expeditions is still pending, as is another brought by Conserve Big Bend, the nonprofit behind No Big Bend Wall. The Center for Biological Diversity is also fighting a FOIA lawsuit regarding the government’s plans for the wall in the Big Bend sector, which recently revealed that the agency was planning for a nearly 70-mile stretch of “secondary wall,” doubling the potential path of destruction.
Since the stay was issued yesterday afternoon, a number of advocacy groups have expressed disappointment in the court’s ruling. “While we respect the Court’s decision, it means that the unaccountable destruction of Big Bend National Park’s borderlands is likely to resume at any moment, with DHS unlikely to even tell us what their plan is before the bulldozers run amok,” former Superintendent Bob Krumenaker, an expert witness in the Friends case, wrote in a press release.
“Americans care deeply about this extraordinary national park and they won’t stand by quietly if its irreplaceable landscapes are butchered and paved over,” said Laiken Jordahl, a public lands advocate for the organization. “The damage done to Big Bend will be felt for future generations of Texans and Americans, and this administration will bear responsibility for the natural heritage we lose.”
