A border statute passed in 1996 won a major test at the Supreme Court on Monday, and construction crews in West Texas can now return to work.
The justices voted 8-1 in an unsigned decision in Mullin v. Friends of the Ruidosa Church.
Their order lifts an injunction that U.S. District Judge Kathleen Cardone, a George W. Bush appointee, had placed on barrier and infrastructure work in the Big Bend region.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 sits at the heart of the case.
It gives the homeland security secretary authority to build barriers and roads in areas of high illegal entry.
Congress later strengthened that authority.
Lawmakers added language allowing the secretary “to waive all legal requirements” considered necessary to ensure the “expeditious construction” of border barriers.
The statute also places tight limits on how far federal courts can go when someone challenges those waivers. The Supreme Court leaned on that language in its ruling.
“Congress’s enactment of Section 102 — which permits the Secretary to waive the requirements of environmental-protection and other conservation laws — reflects a clear preference for expeditious border construction over the very harms respondents assert,” the court wrote.
The Department of Homeland Security used that waiver power earlier this year to speed up work in Big Bend.
Environmental groups, local residents and other opponents responded with multiple lawsuits, citing concerns about wildlife, public lands, tourism and the Rio Grande.
Friends of the Ruidosa Church, the Center for Biological Diversity and river guide Danny William Miller Jr. all appear among the plaintiffs.
Cardone sided with the challengers at the district level.
She questioned whether Congress had clearly authorized the government to set aside so many environmental requirements, and she pointed out that the area accounts for a relatively small percentage of illegal border apprehensions.
The challengers built their argument on the major questions doctrine. The Supreme Court turned that argument away.
“There is no such thing as a ‘constitutional’ major-questions claim,” the justices wrote. According to the court, the doctrine serves as a rule for reading statutes, and the plaintiffs’ claim “alleges instead that the Secretary exceeded his statutory authority.”
The majority also rejected a second argument, that the administration had to prove illegal entries in Big Bend were high compared with other parts of the southern border.
“There is no such thing as ‘comparative high illegal entry’ in the statute,” the court wrote.
Solicitor General D. John Sauer carried the administration’s appeal to the high court.
He argued that Cardone’s order interfered with the executive branch’s ability to secure the border and contradicted the limits Congress set on judicial review.
The justices concluded the government had met the requirements for emergency relief.
They wrote that stopping the project “impedes the Government from advancing its ‘compelling interests’ in border security and integrity.”
“The Government’s interest therefore outweighs any aesthetic, recreational, and environmental harm alleged by respondents,” the court concluded.
Justice Ketanji Brown Jackson, a Joe Biden appointee, registered the only public dissent.
She said she would have denied the administration’s emergency application, and she offered no separate explanation.
Opponents of the project voiced strong objections.
“This horrific decision clears the way for contractors to bulldoze pristine desert and dynamite canyon walls before the courts have even decided whether this destruction is legal,” Center for Biological Diversity advocate Laiken Jordahl said.
The administration points to illegal crossings and drug trafficking in the region as justification for additional barriers, roads and surveillance infrastructure.
It has also argued that leaving large gaps could push smugglers and cartels toward Big Bend as barriers strengthen elsewhere.
The Big Bend Sector covers roughly 517 miles of the U.S.-Mexico border, which makes it one of the largest Border Patrol sectors by geography.
The overall project calls for barriers, patrol roads, vehicle barriers and surveillance technology.
Customs and Border Protection has said it no longer intends to build a 30-foot pedestrian wall inside Big Bend National Park, though roads, vehicle barriers and surveillance infrastructure remain planned there.
Construction can proceed while the administration asks the Supreme Court for further review of the underlying lawsuit.
