Staff Reports
The Supreme Court just gave the Biden administration and Secretary of Homeland Security Markwayne Mullin the green light to resume building a key stretch of the border wall in the Big Bend region of Texas while a lawsuit moves up the court ladder. The high court granted an emergency stay of a Texas district judge’s injunction, clearing the way for construction to continue as the government asks the Supreme Court to take the case.
What the Supreme Court actually did
In a short, per curiam order (application No. 26A560) the Court “granted the requested stay.” That stay lifts Judge Kathleen Cardone’s injunction that had frozen construction and the administration’s Big Bend waivers. The stay is tied to the government filing a petition for certiorari — if the Court refuses to hear the case the stay ends automatically; if the Court accepts it, construction stays paused only until the Court issues a final decision. Justice Ketanji Brown Jackson registered the lone dissent: “JUSTICE JACKSON would deny the application for stay.”
Why the justices sided with the government
The Court said the government is “exceedingly likely to prevail” on a legal threshold question: whether federal law — specifically IIRIRA §102 — limits district courts to hearing only constitutional claims and thus blocks the plaintiffs’ statutory “major questions” challenges. The order also noted the government’s claim that the injunction was costing nearly half a million dollars a day in unrecoverable expenses, a factor the Court treated as evidence of irreparable harm. In short, the justices concluded the lower court probably lacked the power to decide the challengers’ statutory claim — so construction can proceed while that jurisdictional fight goes to the Supreme Court.
What this means on the ground in Big Bend
Practically, crews can go back to work in a remote but strategically important stretch of the Texas border. The Big Bend Sector contains large gaps in barriers and includes national park land, private property, and sensitive environmental areas — which is exactly why environmental groups and a local river guide sued to stop the project. Their arguments will still be heard in the lower courts unless the Supreme Court resolves the case on the merits, but for now the administration can press ahead with the barrier, access roads, and related construction that had been halted.
Why conservatives should care — and what comes next
This was the sensible result. The rule of law matters, but so do borders and national security. If a statute gives the Secretary broad authority and narrows district-court review, courts should be careful about freezing major security projects on procedural grounds. The government will likely file for full Supreme Court review next; if the Court takes the case, we’ll get a final answer on the scope of IIRIRA §102 and when courts can step in. Meanwhile, Congress should stop pretending this is someone else’s problem and pass durable solutions that protect the border without years of courtroom limbo. If not, expect more emergency trips to the Supreme Court — and more taxpayer dollars wasted while bureaucrats and lawyers play musical injunctions.
