The Supreme Court on Monday let the Homeland Security Department resume border construction in the Big Bend region of Texas, in a five-page unsigned order saying the judge who halted the work most likely had no power to hear the claim.
Justice Ketanji Brown Jackson would have denied the government's application. She did not write anything explaining why. The order in Mullin v. Friends of the Ruidosa Church, No. 26A560, pauses a preliminary injunction that U.S. District Judge Kathleen Cardone of El Paso entered on October 2. The injunction had stood for 38 days.
The clause that decided it
The case is about Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Subsection (c)(1) lets the Homeland Security secretary "waive all legal requirements" that he decides are "necessary to ensure expeditious construction" of barriers and roads. Subsection (c)(2)(A) then narrows who can complain. A claim "may only be brought alleging a violation of the Constitution of the United States," the order quotes the statute as saying, and courts "shall not have jurisdiction" over any other kind.
The challengers are a river guide, an environmental nonprofit and a group formed to preserve a historic church in Ruidosa, Texas. The Texas Tribune identified them as Danny William Miller Jr., the Center for Biological Diversity and Friends of the Ruidosa Church, and reported that they sued in April. To get past the jurisdiction clause, they framed their main claim as a constitutional one, alleging that the waivers "violat[ed] the major questions doctrine under the U. S. Constitution, Article I, Section 1."
Cardone accepted that framing. She treated the major questions doctrine as "a constitutional clear statement rule grounded in separation of powers," the order recounts, and found the secretary likely lacked "clear congressional authorization" for the waivers.
The Supreme Court did not. "However it is labeled, respondents' claim does not 'alleg[e] a violation of the Constitution of the United States,'" the per curiam says. It relies on Dalton v. Specter, a 1994 case holding that claims that the executive branch exceeded its statutory authority are not constitutional claims. Then comes the sentence that will be quoted in other cases: "There is no such thing as a 'constitutional' major-questions claim."
Our close read: five things the order does
It grants a stay, not the summary reversal the Solicitor General also asked for. The government's application requested "either summary reversal or a stay," the order says. The Court chose the narrower option.
It explains why the case skipped the Fifth Circuit. Section 102(c)(2)(C) leaves appeals courts without jurisdiction over these cases, so the only route above the district court is a petition to the justices.
It borrows the major questions point from two concurrences. To show that the doctrine is a tool for reading statutes, the Court cites Justice Amy Coney Barrett's concurrence in Biden v. Nebraska (2023) and Justice Brett Kavanaugh's concurrence in FCC v. Consumers' Research (2025).
It accepts the government's money argument. A Customs and Border Protection official declared that the injunction was costing "nearly half a million dollars" a day that "cannot be recouped," and the Court cited its 2025 order in National Institutes of Health v. American Public Health Association for the point that unrecoverable spending can count as irreparable harm.
It puts the equities with Congress. Because the waiver statute lets the secretary set aside environmental and conservation laws, the Court wrote, "The Government's interest therefore outweighs any aesthetic, recreational, and environmental harm alleged by respondents."
The order cites five Federal Register entries for the waivers, by our count, at 91 Fed. Reg. 7298, 27969, 34831, 40550 and 46939. That fits SCOTUSblog's report that the department issued three waivers for the area in 2026, with the order noting amendments to two of them.
Our timeline and the cost arithmetic
October 2: Cardone enters the preliminary injunction. Day 0.
October 14: Her written opinion follows, day 12, the Tribune reported.
October 21: Solicitor General D. John Sauer files the emergency application, day 19. "Congress did clearly authorize the Secretary both to build border barriers," he wrote, per SCOTUSblog, which noted the emphasis was his.
November 9: The Court grants the stay, day 38 and 19 days after the application.
Using the government's own figure of nearly $500,000 a day, 38 days of stopped work come to just under $19 million. That is a number from a government declaration that the Court accepted for purposes of a stay. It has not been tested at trial. For scale, the Tribune reported that the administration has awarded $7.5 billion in contracts for roads, barriers and technology in the area. Our $19 million estimate is about one quarter of one percent of that total.
The Tribune also reported that the Big Bend sector covers 517 miles of the border and accounts for about 1.6 percent of migrant apprehensions borderwide. SCOTUSblog reported that the government counted more than 89,000 apprehensions there from 2021 through 2025.
The reaction
"This horrific decision clears the way for contractors to bulldoze pristine desert and dynamite canyon walls before the courts have even decided whether this destruction is legal," Laiken Jordahl, national public lands advocate at the Center for Biological Diversity, said, the Tribune reported.
The administration had argued that Congress approved the waiver authority and that the delay was costing about $500,000 a day, the Tribune reported. The order adopts both points.
What happens next
The stay lasts until the Court rules on a petition for certiorari, if the government files one on time. If the justices deny review, "this stay shall terminate automatically," the order says, and Cardone's injunction would return. If they grant review, the stay holds until the Court decides the case. Meanwhile the suit continues in El Paso, and the Tribune counts it as one of six lawsuits seeking to stop construction in Big Bend. The next filing to watch is the government's petition, which would put the jurisdiction question before the full Court on the merits.
The emergency docket does not always favor the government. Our report on the Court's refusal to make California set aside 20,000 mail ballots shows a Justice Department application that failed on November 2. For another recent immigration order, see the Court's refusal to revive a rule letting immigration judges pause deportation cases.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
