The government says a judge’s injunction has halted about 340 miles of planned barriers and roads, and its lawyers lean on a 2019 Ninth Circuit ruling from a San Diego border case.
The Trump administration’s argument rests on a statute and a number. The statute is Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which directs the Secretary of Homeland Security to build barriers “to deter illegal crossings in areas of high illegal entry” and, as amended in 2005, lets the secretary waive “all legal requirements” to do it quickly. The number is 89,000: the apprehensions the Border Patrol says it made in its Big Bend Sector from fiscal 2021 through 2025.
On Oct. 21, Solicitor General D. John Sauer asked the Supreme Court to put those two things back to work. In an emergency application in Mullin v. Friends of the Ruidosa Church, No. 26A560, the government asked the justices to stay a Texas federal judge’s injunction that halted barrier construction across the sector, and to go further by treating the filing as a petition for review and summarily reversing.
“The district court’s injunction significantly frustrates the government’s ability to stop the flow of illegal aliens and drugs across the southern border,” Mr. Sauer wrote, as CBS News reported. Justice Samuel A. Alito Jr., who handles emergency matters from the Fifth Circuit, has called for a response by 4 p.m. Eastern on Thursday, Oct. 29.
The government’s case, by the numbers
The Big Bend Sector covers 517 river miles, almost a quarter of the U.S.-Mexico border, according to the application. Across those miles, the government says, agents also seized drugs including more than 94 pounds of fentanyl, and the Sinaloa and Juárez cartels operate to the south.
Three waivers are at issue. In February, Kristi Noem, then the homeland security secretary, waived environmental and other laws for about 164 miles. Her successor, Markwayne Mullin, issued a second waiver in May covering roads and about 17 miles of noncontiguous vehicle barrier inside Big Bend National Park, and a third in July covering about 160 miles in the Big Bend and Del Rio Sectors.
The government says five construction contracts have been awarded, about three-quarters of a mile of barrier has been built, and the work stoppage is costing more than $460,000 a day in suspension costs. It argues that leaving a 300-plus-mile gap would act as “a dangerous magnet for cartels and other bad actors to exploit as other routes close off.”
The administration also says no 30-foot wall is planned inside Big Bend National Park or Big Bend Ranch State Park, citing an Aug. 13 statement by Rodney Scott, the commissioner of Customs and Border Protection. Bollard walls are planned on private land, while the parks would get patrol roads, vehicle barriers and detection technology, according to the application and Texas Public Radio.
Its legal claim is that the injunction is without precedent. More than 60 waivers have been issued since 2005, and “every attempted constitutional challenge” to the waiver authority has failed, the application says. “Until now, no court has ever sustained a challenge to the substance of a Secretary’s Section 102(c) waiver decision.”
What the judge found
The challengers are Friends of the Ruidosa Church, a group dedicated to preserving a historic church along the Rio Grande; the Center for Biological Diversity; and a Big Bend river guide. They sued in April.
U.S. District Judge Kathleen Cardone of the Western District of Texas granted a preliminary injunction from the bench on Oct. 2 and issued her opinion on Oct. 14. She treated the major-questions doctrine, which requires clear congressional authorization for decisions of vast significance, as a constitutional rule, and concluded that the waivers lacked that authorization because apprehensions in Big Bend are comparatively low. CBS reported that court filings put the sector’s share of border-wide apprehensions at between 0.3 percent and 2.2 percent a year. Judge Cardone also cited harm to river guides’ and a rancher’s livelihoods and to the area’s ecosystems. She declined to pause her order shortly before the government went to the Supreme Court.
“We’re deeply disappointed that the Trump administration is asking the Supreme Court for a green light to bulldoze one of America’s wildest, most extraordinary landscapes,” Zeynep Graves, a senior attorney at the center, said in a statement after the government filed. “We’re confident the law is on our side and that only Congress can authorize something as consequential as walling off the entire U.S.-Mexico border.”
The government counters that the major-questions claim is not a constitutional claim at all, and so falls outside the narrow review the statute allows.
The California precedent
The waiver power at the center of the case was last tested on California’s border, and California lost.
In 2017, the Department of Homeland Security waived environmental laws for barrier projects near San Diego. California, under then-Attorney General Xavier Becerra, sued alongside environmental groups. A federal judge in San Diego upheld the waiver in 2018, and in 2019 the Ninth Circuit, the San Francisco-based appeals court, affirmed. The Supreme Court declined to take up the environmental groups’ appeal.
That Ninth Circuit ruling now sits at the heart of the government’s case against Judge Cardone’s reasoning. “IIRIRA does not dictate that ‘high illegal entry’ is a comparative determination,” the appeals court wrote in 2019, a passage the solicitor general quotes to argue that a low-traffic sector can still qualify.
How the justices handle the application could shape how much room is left for challenges to future waivers along California’s roughly 140-mile border with Mexico. A ruling for the government would reinforce the line of cases that began with the San Diego litigation; a ruling for the challengers would leave in place the first injunction, by the government’s count, to block construction under a waiver.
The response from the challengers is due Thursday.
Anjali Venkatram covers national news and the federal policies, court rulings and trends that reach California, for National News. More from Anjali Venkatram
