U.S. asks Supreme Court to let Big Bend border wall resume

The Trump administration asked the U.S. Supreme Court on Wednesday to lift a federal judge’s order that halted border wall construction in the Big Bend region of southwestern Texas, SCOTUSblog reported Oct. 21.

The emergency application, Mullin v. Friends of the Ruidosa Church, No. 26A560, was filed by Solicitor General D. John Sauer. It asks the court to pause the order and also to take up the case and reverse the lower court’s ruling outright. The filing is developing, and the court had not acted on it as of Thursday.

At issue are three waivers issued in 2026 by Homeland Security Secretary Markwayne Mullin and his predecessor, Kristi Noem. The waivers set aside a range of environmental and conservation laws for wall and road construction in the Big Bend region, including areas in Big Bend National Park. The department determined the area is “an area of high illegal entry,” according to the filing as described by SCOTUSblog.

Sauer said U.S. Customs and Border Protection apprehended more than 89,000 people in the area from 2021 to 2025. He called the lower court’s order “baseless” and “unprecedented.”

A federal law passed in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act, lets the homeland security secretary “waive all legal requirements” needed “to ensure expeditious construction” of border barriers and roads. Federal courts may hear challenges to those waivers only if they allege a violation of the Constitution.

That limit is the centre of the dispute. An environmental group, a local landowner and a group formed to preserve a church sued in federal court. On Oct. 2, U.S. District Judge Kathleen Cardone in El Paso temporarily barred the department from continuing construction in the region “until and unless” the government complies with environmental and other applicable laws.

In a written opinion issued Oct. 14, Cardone found the challengers likely to succeed on their claim that the secretary lacked the power to issue the waivers under the major questions doctrine. She described that doctrine as a constitutional rule based on the idea that “courts should expect Congress to speak clearly when it delegates major lawmaking authority to the executive.” She also wrote that “the evidence shows that the Big Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border.”

The administration disputes that the claim is constitutional at all. Sauer argued that a claim an official acted “in excess of his statutory authority” is not a claim alleging a “violation of the Constitution,” so the district court could not hear it. He added that even if the waiver power raises 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.”

SCOTUSblog’s report did not give a deadline for the challengers to respond or say which justice will handle the application. Emergency applications of this kind are typically referred to the full court, which can act with or without a written explanation.

The application and its appendix, including Cardone’s opinion, are posted on the Supreme Court’s docket for No. 26A560. The court has been busy with other matters this month, including its decision to take up the federal ban on home distilling and its refusal to hear a fired labour board member’s appeal.

The case has no direct Canadian element, since the wall in question runs along the U.S.-Mexico border. It is part of a broader U.S. debate over how much power Congress has handed the executive branch on border security.

Via SCOTUSblog, which linked the government’s application (U.S. Supreme Court).

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