The federal injunction that stopped border wall work in the Big Bend Sector of West Texas is no longer in effect while a U.S. Supreme Court stay is in place. The justices granted the stay on Nov. 9, removing that court order as an obstacle to construction. The ruling does not say when crews will return.
The Oct. 2 injunction barred federal defendants from building barriers or related infrastructure or disturbing ground in the sector unless they complied with applicable laws. It also barred them from relying on the challenged waivers. The dispute began after the homeland security secretary waived environmental and conservation requirements. The challengers include a river guide, the Center for Biological Diversity and Friends of the Ruidosa Church, a nonprofit that works to preserve a historic church in Texas. The district court’s opinion lays out the parties and the waivers.
The two courts read the same challenge differently. The district court treated the challengers’ argument as constitutional: It saw the requirement for clear congressional authorization for decisions of major significance as rooted in the separation of powers. The Supreme Court treated the argument as a dispute over what a statute authorizes. That distinction mattered because Section 102 of the 1996 immigration law limits challenges arising from these waivers to claims that allege a violation of the Constitution. The justices concluded the government was highly likely to win its argument that the district court had no authority to hear this particular claim.
The Court also weighed the government’s interest in avoiding construction delays against the challengers’ asserted harm to their use and enjoyment of the area. It concluded that Congress gave priority to speedy border construction under the waiver provision. Justice Ketanji Brown Jackson would have denied the stay; the opinion gives no reasons from her.
The government asked for both a stay and a quick reversal. The Court granted the stay. The law sends review of this injunction directly to the Supreme Court, without a stop at the Fifth Circuit. Under the terms of the order, the stay covers a timely government petition while the Court considers it. If the Court declines review, the stay ends automatically. If it takes the case, the stay ends when the Court formally sends down its judgment.