Groups Ask Supreme Court to Leave Lower Court Order in Place Halting Border Wall Construction in Southwestern Texas
By Amy Howe / Oct 29, 2026
The plaintiffs challenging the Trump administration’s efforts to build a border wall in the Big Bend region of southwestern Texas urged the Supreme Court on Thursday to leave in place an order by a federal trial judge in El Paso temporarily halting the construction. Eric Glitzenstein, a lawyer representing the plaintiffs, told the justices in a 40-page filing that granting the federal government’s request to lift that order would allow the Trump administration to “immediately resume blasting, bulldozing, road construction, and other border barrier-related construction across one of the most remote and ecologically and culturally significant landscapes in the United States.”
The dispute centers on three waivers of various environmental and conservation laws that then-Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued earlier this year to authorize construction of the border wall in the Big Bend region, including areas in Big Bend National Park. Noem and Mullin relied on a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that gives the Secretary of Homeland Security the power to “waive all legal requirements” necessary “to ensure expeditious construction” of border walls and roads.
With the waivers, Noem and Mullin determined that additional border barriers are required in the Big Bend area because it “is an area of high illegal entry.”
The plaintiffs in this case – an environmental group, a local landowner, and a group formed to preserve a church – went to federal court to challenge the waivers’ legality. On Oct. 2, U.S. District Judge Kathleen Cardone temporarily barred the Department of Homeland Security from continuing construction on the border wall in the Big Bend region “until and unless” the government complies with environmental and other applicable laws.
In a written opinion issued on Oct. 14 to explain her reasoning, Cardone concluded that the challengers were likely to prevail on their claim that under the major questions doctrine – the idea that if Congress intends to give a federal agency the power to make decisions of vast economic or political significance, it must say so explicitly – the DHS secretary did not have the authority to issue the waivers.
As an initial matter, Cardone rejected the government’s contention that she did not have the power to consider the challengers’ claims because they arose from a statute, while IIRIRA only allows federal courts to hear challenges to waiver decisions if they involve the Constitution. The major questions doctrine, she said, is a “constitutional … rule” based on the idea that “courts should expect Congress to speak clearly when it delegates major lawmaking authority to the executive.”
Turning to the question of whether the major questions doctrine barred the waivers, she observed that both the government and the challengers “appear to agree that the waiver of all legal requirements to construct a border wall in the Big Bend Sector is of ‘major economic and political significance.’” The key issue, she continued, is thus whether Congress clearly gave the DHS secretary the power to issue the Big Bend waivers. It did not, she wrote. She emphasized that another provision of IIRIRA authorizes the DHS secretary to “take such actions as may be necessary to install additional border barriers,” but does not grant them the power to waive environmental laws.