The Trump administration returned to the Supreme Court on Wednesday afternoon seeking permission to restart border wall construction in southwestern Texas after a federal trial judge ordered the work stopped. U.S. Solicitor General D. John Sauer asked the justices to pause that order and to grant review and summarily reverse it so building can resume in the Big Bend region.
SCOTUSblog reported that the fight centers on three waivers issued in 2026 by Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin. Those waivers cleared environmental and conservation rules for barrier work that includes areas inside Big Bend National Park.
The legal stakes are immediate. An El Paso judge has frozen construction until the government meets environmental and other laws. The administration says Congress already gave the Department of Homeland Security power to cut through those requirements for fast border building. Challengers say the waivers went too far.
U.S. District Judge Kathleen Cardone issued the temporary bar on Oct. 2. She blocked the Department of Homeland Security from continuing construction in the Big Bend region “until and unless” the government complies with environmental and other applicable laws. On Oct. 14 she released a written opinion explaining her reasoning.
An environmental group, a local landowner, and a group formed to preserve a church had gone to federal court to challenge the legality of the waivers. Cardone found the challengers were likely to prevail. She rejected the government’s argument that she lacked power to hear the dispute because it turned on a statute rather than the Constitution.
Cardone framed the major questions doctrine as a “constitutional... rule” grounded in the idea that “courts should expect Congress to speak clearly when it delegates major lawmaking authority to the executive.”
She wrote that Congress had given the DHS secretary waiver power “to deter illegal crossings in areas of high illegal entry into the United States.” She then found that “the evidence shows that the Big Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border.”
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 sits at the center of the case. Under that statute, the secretary of homeland security may “waive all legal requirements” necessary “to ensure expeditious construction” of border walls and roads.
Congress also limited court review. Federal courts may hear challenges to such waiver decisions only if they allege a violation of the Constitution.
Sauer told the justices the district court order ignored that limit. He called the order “baseless” and “unprecedented.”
In the application, Sauer argued the challengers’ theory does not open the courthouse door:
"As this Court has long held, a claim that alleges that an Executive Branch official acted ‘in excess of his statutory authority’ is not a claim alleging a ‘violation of the Constitution.’"
He pressed the point on clear authorization as well:
"Even assuming that the Secretary’s waiver authority implicates a question of ‘vast economic and political significance,’ Congress did clearly authorize the Secretary both to build border barriers and to waive legal requirements in order to facilitate their expeditious construction."
The two sides describe Big Bend in opposite terms. Sauer said Noem and Mullin determined that additional barriers are required because the area “is an area of high illegal entry.” He pointed to U.S. Customs and Border Protection figures showing officers apprehended more than 89,000 immigrants in the Big Bend area who were attempting to illegally enter the United States between 2021 and 2025.
Cardone reached the opposite conclusion on entry rates. She treated the sector’s low relative rate as proof that the statutory premise for waiver power did not fit this stretch of border.
Geography magnifies the dispute. The Big Bend region comprises almost one-fourth of the U.S.-Mexico border. Any long pause there is not a narrow local delay. It freezes work across a major share of the southern line.
Border wall construction was central to President Donald Trump’s first campaign and first-term immigration agenda. President Joe Biden largely stopped construction when he took office in 2021. Trump sought to resume the work when he returned to office in 2025. The Noem and Mullin waivers followed in 2026, and the El Paso injunction followed in October.
The administration’s Supreme Court filing, tied to the caption Mullin v. Friends of the Ruidosa Church, asks for more than breathing room. Sauer wants the justices to pause Cardone’s order now and then grant review and reverse it without a full round of ordinary briefing and argument.
That posture matters. A temporary pause would let crews return while the larger fight continues. A summary reversal would wipe out the injunction’s legal footing and restore the waivers as operative authority for expeditious construction.
Investigators and litigants are not the issue here. The Court is. The application puts three linked questions in front of the justices.
First is reviewability. Did Cardone have authority to apply the major questions doctrine to an IIRIRA waiver, or does the statute confine courts to true constitutional claims?
Second is clear authorization. Did Congress speak clearly enough when it armed the secretary to build barriers and waive legal requirements for speed, or must the government make a separate showing that Big Bend is a high-entry zone before those waivers can stand?
Third is the factual predicate. Sauer presents more than 89,000 apprehensions over four years and an official determination of high illegal entry. Cardone presents the sector as the lowest-rate segment on the entire southwest border. The Court will have to decide what that record means for statutory power, if it reaches the merits.
Authorities have not publicly released, in the material SCOTUSblog described, a full inventory of every environmental and conservation law covered by the three waivers. The public docket fight still turns on the broader claim that the secretary lacked “clear congressional authorization” to issue them.
The case is not only about fencing plans inside a national park corridor. It tests whether a trial judge may halt congressionally authorized barrier construction by recasting a statutory waiver dispute as a major questions problem, and whether the Supreme Court will enforce the narrow review channel Congress wrote into the 1996 law.
For the administration, the order blocks a core border tool after the White House moved to restart construction. For the challengers, the waivers short-circuit environmental process on sensitive land. For the Court, the filing is a direct request to restore executive capacity to build under a statute designed for speed.
Cardone’s injunction leaves construction frozen until compliance with the very requirements the secretary purported to waive. Sauer’s application asks the justices to treat that result as legally untenable under IIRIRA and prior Court doctrine on what counts as a constitutional claim.
The next move belongs to the Supreme Court. Until the justices act, the Big Bend barrier project remains stopped under the El Paso order, and the waiver authority Congress placed in the homeland security secretary remains under a trial-court cloud.
Border security statutes mean little if a single district order can shelve them while entry fights grind on. The Court now has to say whether Congress still controls that switch.
