Supreme Court Lets Big Bend Border Construction Resume. A Stay Is Not the Final Word.
An 8-1 Supreme Court stay lifts a Texas injunction on Big Bend barrier work while the case continues. Jurisdiction, not a final merits win, drove the order.
The facts come first below. My opinion follows in the section marked as opinion.
The Supreme Court on Monday stayed a Texas federal judge's injunction and allowed the Trump administration to resume border-barrier construction in the Big Bend region of southwest Texas, including areas tied to Big Bend National Park. The unsigned stay lifts Judge Kathleen Cardone's Oct. 2 injunction blocking Homeland Security waivers and associated construction while litigation continues; it is not a final ruling that the project is lawful in every respect.
NBC News and ABC News both reported the 8-1 decision. Justice Ketanji Brown Jackson was the lone noted dissent. The Court's own per curiam stay opinion in Mullin v. Friends of the Ruidosa Church explains the jurisdictional ground for lifting the pause.
What the Court decided
U.S. District Judge Kathleen Cardone had blocked construction on Oct. 2 after challengers attacked Homeland Security waivers of environmental and conservation laws. NBC reported that the Court blocked the injunction while litigation continues. ABC News reported that the Court said the government is exceedingly likely to prevail on its argument that the district court lacked jurisdiction.
The stay opinion says the government is "exceedingly likely to prevail" because the challengers' so-called major-questions claim alleged that the secretary exceeded statutory authority under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Congress limited district-court review of waiver disputes to claims alleging a constitutional violation. The Court wrote that there is no such thing as a constitutional major-questions claim.
ABC News reported that the Court also weighed the government's claim that stalled work was costing nearly half a million dollars a day and that border security is a compelling interest. The stay opinion likewise cites unrecoverable daily costs and the government's border-security interests.
What remains unsettled
The Court granted a stay rather than the government's alternative request for summary reversal. Construction may resume under the stay, but the underlying lawsuit continues. Challengers include the Center for Biological Diversity, a historic-church preservation group and a local river guide. They argue the waivers stretch beyond areas of high illegal entry and threaten landscape and cultural resources.
NBC quoted Center for Biological Diversity lawyer Laiken Jordahl calling the decision horrific and warning that contractors could bulldoze desert and dynamite canyon walls before courts finish deciding legality. That is an advocate's reaction, not a Court finding.
Border enforcement politics remain contested after the midterms, as discussed separately in Trump Says Deportations 'Might Be Too Tough.' An Interview Is Not a Policy Rewrite.
Readers should also keep the calendar and the remedy straight. The stay remains in force while the government seeks certiorari. If the Court later denies review, the stay ends automatically under the terms of the per curiam opinion. Until then, contractors may resume work that Cardone had paused, and the parties will keep litigating the larger dispute about statutory power, park land and property impacts.
Opinion: Secure the border without pretending every acre is the same
A nation has a duty to control its border. Congress wrote a statute that authorizes barrier construction and waivers for that purpose. When a lower court invents a constitutional claim out of a statutory dispute, the Supreme Court is right to police jurisdiction.
That legal point does not settle every practical question. Officials should tell the truth about encounter rates, property impacts and what is being built inside a national park versus nearby sectors. Border security is not strengthened by careless claims, and it is not served by treating every environmental objection as sabotage.
Christians should want both lawful order and honest stewardship. Do not sneer at people who love a landscape. Do not pretend that leaving a sector open while fortifying others has no consequences. Demand competent engineering, clear maps and respect for private property where the law requires it.
A stay is not the end of the case. Build what the law allows. Answer the remaining claims with evidence. Keep the border real without treating every critic as an enemy of the country.
