The Supreme Court on Monday cleared the way for the Trump administration to resume border construction across the Big Bend region of West Texas, an area that includes parts of Big Bend National Park, one of the most remote and celebrated landscapes in the country.
In a four-page unsigned opinion, the justices put on hold a federal judge’s order that had stopped the project in its tracks. The vote was 8-1. Justice Ketanji Brown Jackson was the only member of the court to say she would have denied the government’s request, and she did not explain why.
What’s being built
ABC News reports the construction will include physical walls, access roads and vehicle barriers. According to The Washington Post, the project is a stretch of more than 500 miles of road, cameras, vehicle barriers and sensors, including segments where a 30-foot wall will be built, although the administration has backed off plans for a wall inside the national park itself. The plan has drawn significant backlash.
How the fight started
Earlier this year, then-Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued three waivers of environmental and conservation laws to speed up construction in what Customs and Border Protection calls the “Big Bend Sector.” They relied on a 1996 immigration law that lets the Homeland Security secretary “waive all legal requirements” needed “to ensure expeditious construction” of border barriers and roads, and they declared the area one “of high illegal entry.”
An environmental group, the Center for Biological Diversity, sued along with Friends of the Ruidosa Church, a group formed to preserve a historic church, and a local landowner who works as a river guide.
On Oct. 2, U.S. District Judge Kathleen Cardone blocked further construction “until and unless” the government complied with environmental and other laws. In an opinion released Oct. 14, she wrote that the challengers were likely to win their argument that the secretary went beyond his authority. She pointed out that the Big Bend region makes up more than 25% of the U.S.-Mexico border but only between 0.3% and 2.2% of migrants apprehended crossing it, according to SCOTUSblog’s account of her ruling. “If the Big Bend Sector is an area of high illegal entry, so is every other sector,” she wrote.
What the Supreme Court said
The justices said the government “is exceedingly likely to prevail” on its argument that the district court never had the power to hear the challengers’ claim in the first place. Under the 1996 law, courts can only hear claims that allege a violation of the Constitution, and the court said the challengers’ argument, built on the so-called major questions doctrine, is really a claim that the secretary exceeded his statutory authority. “There is no such thing as a ‘constitutional’ major-questions claim,” the opinion says.
The court also said the shutdown was costing the government nearly half a million dollars a day that it can’t get back, and that the government’s interest in border security “outweighs any aesthetic, recreational, and environmental harm” claimed by the challengers.
The justices did not go as far as the administration wanted. They turned down its request to reverse the judge’s ruling outright without further arguments, which means the lawsuit itself continues. But construction can resume while it does.
What opponents warned
In their filing to the Supreme Court, the challengers’ lawyer, Eric Glitzenstein, warned that lifting the judge’s order would let the administration “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.”
They argued that waiving “myriad federal, state, local, and tribal laws across vast geography,” even through national and state parks where crossings are rare, is “a truly ‘extraordinary’ assertion of power.” Eight justices disagreed, at least for now.
Reporting based on accounts from ABC News, SCOTUSblog, The Washington Post, the Associated Press and the Supreme Court’s opinion.