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TEXAS - The U.S. Supreme Court on Monday allowed border barrier and road construction in Texas’ Big Bend Sector to proceed while further review is sought, pausing a lower court injunction in a lawsuit challenging the federal government’s use of environmental law waivers.
The Nov. 9 order grants the federal government temporary relief in a case brought by a river guide, an environmental nonprofit and an organization dedicated to preserving a historic church in Ruidosa, Texas.
The lawsuit challenges Homeland Security Secretary Markwayne Mullin’s decision to waive environmental and conservation requirements for border construction in the region.
Why the Supreme Court intervened
Federal law gives the Homeland Security secretary broad authority to build border barriers and roads "to deter illegal crossings in areas of high illegal entry." It also allows the secretary to waive legal requirements deemed necessary to speed construction.
That law limits court challenges arising from those waiver decisions to claims alleging violations of the U.S. Constitution.
The plaintiffs argued that the secretary’s waivers violated the major questions doctrine, which addresses whether Congress clearly authorized certain significant agency actions.
On Oct. 2, the U.S. District Court for the Western District of Texas issued a preliminary injunction blocking the waivers and halting associated construction. The district court concluded that the plaintiffs’ major questions argument qualified as a constitutional claim and was likely to succeed.
The Supreme Court disagreed with that reasoning.
In its unsigned opinion, the court said the plaintiffs’ argument challenged whether the secretary exceeded his authority under federal law, rather than whether he violated the Constitution.
"There is no such thing as a ‘constitutional’ major-questions claim," the court wrote.
The justices said the government was "exceedingly likely to prevail" on its argument that the district court lacked jurisdiction to decide that claim.
Government cited construction delays and costs
The Supreme Court also cited the government’s border security interests and the financial costs of the construction halt.
According to the opinion, a U.S. Customs and Border Protection official said the injunction was costing the government nearly $500,000 per day in expenses that could not be recovered.
The plaintiffs argued that construction would diminish their ability to use and enjoy the area. The court concluded that Congress, by authorizing waivers of environmental and conservation requirements, had prioritized expedited border construction over the types of harm the plaintiffs alleged.
What happens next
The order pauses the injunction while the government seeks Supreme Court review. It does not resolve the entire lawsuit.
If the government timely files a petition and the Supreme Court declines to hear the case, the stay will automatically end. If the court agrees to hear the case, the stay will remain in place until its judgment is sent to the lower court.
Justice Ketanji Brown Jackson would have denied the stay request, the document stated.
The Source: Information for this story come from documents from the U.S. Supreme Court following its ruling.