Supreme Court temporarily lifts injunction against Big Bend border wall

1996 waiver law underpins ruling as lower-court litigation proceeds

In an 8-1 ruling, the Supreme Court temporarily lifted U.S. District Judge Kathleen Cardone’s injunction against the Trump administration’s plan to construct a border wall along a 300-mile stretch of southwest Texas. In an unsigned, five-page opinion, the court said the government’s need for security along the U.S.-Mexico border “outweighs any aesthetic, recreational, and environmental harm” the challengers will incur, rejecting preservationists’ arguments that the wall would harm precious natural resources. The order allows construction to proceed while litigation over the project continues in lower court.

Justice Ketanji Brown Jackson recorded a dissent from the ruling without explaining her reasoning. She was the lone dissenter in the 8-1 decision.

Last month, Cardone, a George W. Bush appointee based in El Paso, blocked the construction. Her injunction hinged on the Department of Homeland Security’s attempt to bypass certain environmental requirements in order to build the wall quickly. She ruled that Congress had not clearly authorized the department to sidestep those requirements.

Cardone invoked the major questions doctrine, which has been embraced by the Supreme Court’s conservative majority in other significant cases. The doctrine requires Congress to be unequivocal if it wants to authorize the executive branch to undertake consequential policy changes.

The Supreme Court took a different view of the law governing the project. It noted that a 1996 immigration law gives the Department of Homeland Security power to “waive” legal requirements to efficiently build barriers at the border. The law also sharply limits courts’ power to review those waivers.

The court said the Trump administration was “exceedingly likely” to succeed in its argument that Cardone did not have the power to block construction. That assessment lifted her injunction for now, but the decision does not end the lower-court case: litigation may continue while construction occurs.

The administration plans to erect barriers and roads in a remote, largely undeveloped area that includes deserts, canyons, part of the Rio Grande River and Big Bend National Park.

The plan has drawn opposition from environmentalists, preservation groups and local residents. In court papers, those opponents described the area as a rugged and majestic wilderness with unique historical and cultural resources that the border wall construction would destroy.

For the government, U.S. Solicitor General John Sauer told the court that gaps in the border wall there can be exploited by drug cartels illegally entering the U.S. from Mexico. He presented the gaps as a security weakness the administration sought to address through construction.

The case returns to lower court with the waiver question unresolved: whether Cardone had power to block construction under the 1996 law and the environmental requirements at issue. The Supreme Court’s temporary order allows construction to proceed while that litigation continues.