The plaintiffs challenging the Trump administration’s efforts to build a border wall in the Big Bend region of southwestern Texas urged the Supreme Court on Thursday to leave in place an order by a federal trial judge in El Paso temporarily halting the construction. Eric Glitzenstein, a lawyer representing the plaintiffs, told the justices in a 40-page filing that granting the federal government’s request to lift that order would allow the Trump administration to “immediately resume blasting, bulldozing, road construction, and other border barrier-related construction across one of the most remote and ecologically and culturally significant landscapes in the United States.”
The dispute centers on three waivers of various environmental and conservation laws that then-Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued earlier this year to authorize construction of the border wall in the Big Bend region, including areas in Big Bend National Park. Noem and Mullin relied on a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that gives the Secretary of Homeland Security the power to “waive all legal requirements” necessary “to ensure expeditious construction” of border walls and roads. With the waivers, Noem and Mullin determined that additional border barriers are required in the Big Bend area because it “is an area of high illegal entry.”
The plaintiffs in this case – an environmental group, a local landowner, and a group formed to preserve a church – went to federal court to challenge the waivers’ legality. On Oct. 2, U.S. District Judge Kathleen Cardone temporarily barred the Department of Homeland Security from continuing construction on the border wall in the Big Bend region “until and unless” the government complies with environmental and other applicable laws.
In a written opinion issued on Oct
In a written opinion issued on Oct. 14 to explain her reasoning, Cardone concluded that the challengers were likely to prevail on their claim that under the major questions doctrine – the idea that if Congress intends to give a federal agency the power to make decisions of vast economic or political significance, it must say so explicitly – the DHS secretary did not have the authority to issue the waivers.
As an initial matter, Cardone rejected the government’s contention that she did not have the power to consider the challengers’ claims because they arose from a statute, while IIRIRA only allows federal courts to hear challenges to waiver decisions if they involve the Constitution. The major questions doctrine, she said, is a “constitutional … rule” based on the idea that “courts should expect Congress to speak clearly when it delegates major lawmaking authority to the executive.”
Turning to the question of whether the major questions doctrine barred the waivers, she observed that both the government and the challengers “appear to agree that the waiver of all legal requirements to construct a border wall in the Big Bend Sector is of ‘major economic and political significance.’” The key issue, she continued, is thus whether Congress clearly gave the DHS secretary the power to issue the Big Bend waivers. It did not, she wrote. She emphasized that another provision of IIRIRA authorizes the DHS secretary to “take such actions as may be necessary to install additional physical barriers and roads … in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” When that provision is read together with the waiver provision, she said, it means that the DHS secretary can only waive legal requirements for “construction ‘to deter illegal crossings in areas of high illegal entry.’”
The Big Bend region is not, she contended,
But the Big Bend region is not, she contended, such an area: although it “comprises over 25% of the U.S.-Mexico border,” it accounts for only a tiny percentage (“between 0.3% and 2.2%”) of all of the people apprehended crossing the border. This means, she said, that “if the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire U.S.-Mexico border. If that were the case, Congress could have simply authorized construction ‘to deter illegal crossings.’” The major questions doctrine instructs courts to avoid “interpretations that would render limiting language meaningless,” Cardone concluded.
The Trump administration came to the Supreme Court on Oct. 21, asking the justices to pause Cardone’s order and to grant review and summarily reverse it. First, U.S. Solicitor General D. John Sauer argued, the district court did not have the power to consider the challengers’ claim based on the major questions doctrine because their complaint specifically alleged that the DHS secretary “lacked ‘clear congressional authorization’ … to issue the waivers” under the IIRIRA – a statutory claim that “Congress denied district courts” the authority “to entertain.” But in any event, Sauer continued, “[e]ven 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.”
In their brief on Thursday, the challengers insisted that the major questions doctrine applied to their claim, stressing that “the decision to waive myriad federal, state, local, and tribal laws across vast geography for the purpose of building border infrastructure, even through national and state parks where border crossings are miniscule, is a truly ‘extraordinary’ assertion of power.” “Whatever authority Congress delegated, it did not clearly authorize the sweeping exercise of power asserted here, and” the government’s “actions therefore amount to a constitutional violation of the major questions doctrine.”
The challengers also argued that DHS will not suffer any permanent harm if the construction is temporarily blocked – one of the factors that courts consider in deciding whether to award temporary relief. To the contrary, they noted, before Cardone issued her order halting construction, “in response to intense local opposition,” DHS “voluntarily paused construction for weeks in vast portions of the project area.”
