Key Points

  • The Supreme Court stayed a Western District of Texas preliminary injunction that had blocked Homeland Security waivers and halted border-barrier construction in the Big Bend Sector.
  • The per curiam opinion held the government is exceedingly likely to show the district court lacked jurisdiction, because IIRIRA Section 102(c)(2)(A) permits only claims alleging a violation of the Constitution.
  • The Court held that a major-questions claim is a statutory claim that the executive exceeded its authority, not a constitutional claim, even when pleaded under Article I, Section 1.
  • The Court found irreparable harm in unrecoverable costs of nearly half a million dollars a day and held that Congress's waiver provision settles the balance of equities in the government's favor.
  • Justice Jackson would have denied the stay; no written dissent was issued.

The Supreme Court on Monday cleared the way for the federal government to resume building border barriers in the Big Bend Sector along the U.S.-Mexico border, holding that a trial judge likely had no power to halt the project on the theory that it violated the major-questions doctrine.

In an unsigned opinion, the court granted the Solicitor General's request to stay a preliminary injunction that the U.S. District Court for the Western District of Texas entered on Oct. 2. Justice Jackson would have denied the application, according to a one-line notation at the end of the order. No written dissent accompanied it.

The ruling turns on a 1996 immigration law that lets the Secretary of Homeland Security waive environmental and other laws to speed up border construction, and that permits court challenges to those waivers only when they allege a violation of the Constitution. The justices held that a major-questions claim is a statutory claim however it is labeled, so it cannot be used to get around that limit on judicial review.

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, known as IIRIRA, authorizes the secretary to build barriers and roads "to deter illegal crossings in areas of high illegal entry into the United States." The statute allows the secretary "to waive all legal requirements" as the secretary "determines necessary to ensure expeditious construction" of those projects. It also provides that "[a] cause of action or claim may only be brought alleging a violation of the Constitution of the United States," and it strips courts of jurisdiction over other claims.

Earlier this year, Homeland Security Secretary Markwayne Mullin invoked that waiver authority for a construction project in what U.S. Customs and Border Protection calls the Big Bend Sector. The secretary found that the sector "is an area of high illegal entry" requiring additional barriers, and waived a variety of environmental and conservation laws, according to the opinion.

Three challengers sued: an individual river guide, an environmental nonprofit, and a nonprofit organization dedicated to preserving a historic church in Ruidosa, Texas. Among other things, they claimed that the waivers "violat[ed] the major questions doctrine under the U. S. Constitution, Article I, Section 1." The Supreme Court wrote that, "Although styled as constitutional, that claim simply alleged that the Secretary exceeded his statutory authority in issuing the waivers."

The district court acknowledged that its jurisdiction reached only constitutional claims. It nonetheless concluded that the challengers' claim qualified because, in its view, the "major questions doctrine is a constitutional clear statement rule grounded in separation of powers." The court also found the claim likely to succeed because, it said, the secretary lacked clear congressional authorization to issue the waivers, and it blocked the waivers and halted all associated construction.

Because IIRIRA bars the Fifth Circuit from hearing the case, the Solicitor General went directly to the Supreme Court and asked for either summary reversal or a stay of the injunction. The application was presented to Justice Alito, who referred it to the full court. The court granted the stay.

The justices wrote that the government is exceedingly likely to prevail on its argument that the district court lacked jurisdiction over the challengers' claim. That claim, the court held, does not "alleg[e] a violation of the Constitution of the United States," which the opinion described as "the only type of claim the statute permits district courts to adjudicate." "It alleges instead that the Secretary exceeded his statutory authority," the court wrote.

The court relied on Dalton v. Specter, a 1994 decision in which, the opinion said, the justices recognized that "claims simply alleging" that the executive branch has exceeded its statutory authority do not state constitutional claims.

The opinion then addressed the district court's separation-of-powers theory. It acknowledged that many canons of statutory interpretation reflect constitutional principles, citing Justice Barrett's concurrence in Biden v. Nebraska, which listed constitutional avoidance, federalism clear-statement rules and the presumption against retroactivity. When courts invoke those canons, the justices wrote, "they do so in service of adjudicating statutory claims, not constitutional ones."

The same holds for what Justice Kavanaugh, concurring in last year's FCC v. Consumers' Research decision, called "the major questions canon of statutory interpretation," according to the opinion. "There is no such thing as a 'constitutional' major-questions claim," the court wrote.

The justices also found that the other stay factors favored the government. The injunction, they wrote, delays construction in the Big Bend Sector and impedes the government from advancing its "compelling interests" in border security. They cited a declaration from a Customs and Border Protection official who attested that the injunction was costing the government nearly half a million dollars a day, money that "cannot be recouped" if the government ultimately prevails.

On the balance of harms, the challengers had argued that construction would diminish their ability to use and enjoy the area. The court answered that Congress's enactment of the waiver provision "reflects a clear preference for expeditious border construction over the very harms respondents assert." Quoting a 2001 precedent, the opinion said courts "of equity cannot, in their discretion, reject the balance that Congress has struck in a statute."

The government's interest, the court concluded, outweighs the aesthetic, recreational and environmental harms the challengers alleged.

The stay of the injunction in the Texas case, No. 3:26-cv-01099, remains in effect while the government files and the court resolves a petition for a writ of certiorari, if the government timely seeks one. If the court denies certiorari, the stay ends automatically. If it grants review, the stay will last until the court sends down its judgment.