SCOTUS allows Big Bend border wall to go ahead after Texas judge opposed it

The justices allowed construction to continue on wall construction in the Big Bend region of southwestern Texas. Only Justice Ketanji Brown Jackson indicated that she would have denied the government’s request.

Earlier in 2026, the DHS issued waivers authorizing the construction of the wall in the region, which includes parts of Big Bend National Park. A group of plaintiffs opposed construction, including an environmental group, a local landowner, and a church preservation group, and challenged the waivers’ legality.

US District Judge Kathleen Cardone on October temporarily barred the DHS from continuing construction in the region “until and unless” the administration complies with environmental and other laws. Cardone relied on the major questions doctrine in her ruling, which states that if “Congress intends to give a federal agency the power to make decisions of vast economic or political significance, it must say so very clearly,” per SCOTUSblog.

While saying that the Big Bend region accounts for around one quarter of the entire southern border, Cardone said that less than 3 percent of migrants apprehended crossing the border are in this region. She wrote, “If the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire U.S.-Mexico border. If that were the case, Congress could have simply authorized construction ‘to deter illegal crossings.’”

The administration went to the Supreme Court, asking for the justices to freeze Cardone’s order as well as to grant review and summarily reverse it.

US Solicitor General D John Sauder argued that Cardone did not have the power to consider the petitioners’ claims based on the major questions doctrine because “Congress did clearly authorize the Secretary both to build border barriers and to waive legal requirements in order to facilitate their expeditious construction.”

The Supreme Court justices denied the request to summarily reverse Cardone’s ruling, but granted the request to halt it. “We grant the requested stay. The Government is exceedingly likely to prevail on its argument that the District Court lacked jurisdiction to adjudicate respondents’ so-called major-questions-doctrine claim,” the order stated.

The justices said the challengers’ claim “does not ‘alleg[e] a violation of the Constitution of the United States,’ the only type of claim the statute permits district courts to adjudicate.” It alleges instead that the Secretary exceeded his statutory authority. And we have long recognized that ‘claims simply alleging’ that the Executive Branch has exceeded its ‘statutory authority are not ‘constitutional’ claims.’”