Supreme Court Lets Trump Resume Border Wall Construction in Big Bend National Park

The Supreme Court on Monday allowed the Trump administration to resume building border barriers and roads in the Big Bend region of West Texas, including inside Big Bend National Park, while a lawsuit over the project moves forward.

In an unsigned opinion, the court lifted an order from U.S. District Judge Kathleen Cardone in El Paso that had blocked the work. Justice Ketanji Brown Jackson was the only justice to publicly dissent.

The court said Congress had expressed a “clear preference for expeditious border construction,” a preference it said outweighs “any aesthetic, recreational, and environmental harm.” The court also said the administration was “exceedingly likely” to win its argument that no constitutional issue is at stake in the dispute.

What the project covers

The Big Bend sector spans 517 miles along the Rio Grande, more than a quarter of the U.S.-Mexico border. The administration plans barriers and roads across more than 300 miles of the sector, most of it on privately owned land, according to Reuters. Inside Big Bend National Park, the plan calls for a 17-mile noncontiguous vehicle barrier system, not the 30-foot pedestrian barrier planned for other areas.

The Department of Homeland Security issued a series of waivers between February and July to speed the work, setting aside environmental and conservation laws that would otherwise apply. Homeland Security Secretary Markwayne Mullin and his predecessor Kristi Noem found the region to be an “area of high illegal entry” under a 1996 law that allows waivers for barrier construction in such areas. The administration has said border officials seized large quantities of drugs in the region and that cartels operate south of the border in Mexico.

Texans in the Big Bend area, including some Republicans, say a barrier in the region threatens their land, lives and livelihoods, according to USA Today. The park draws more than half a million visitors a year.

The lawsuit and the lower court’s ruling

The Center for Biological Diversity, a Big Bend-area river guide and a group working to preserve a historic adobe church in Ruidosa, Texas, sued over the waivers. The church group says the fragile adobe structure is threatened by the construction.

In October, Judge Cardone blocked the project. She found the waivers lacked clear congressional authorization and ran afoul of the major questions doctrine, which requires Congress to speak clearly when it gives the executive branch power over matters of wide economic and political reach. She also noted that Big Bend has the lowest rate of migrant apprehensions along the entire border.

“Therefore, 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 US-Mexico border,” the judge wrote, according to Reuters.

The Trump administration asked the Supreme Court to lift the injunction after Cardone’s ruling. The Justice Department told the court that her ruling was baseless and that the waiver authority is “a crystal-clear, indisputably valid express delegation from Congress that the executive has used for decades to expedite border-wall construction.”

The administration paused construction in the park in August after bipartisan criticism of the work’s effect on the park’s terrain and wildlife. Crews had already begun clearing land for roads and border security infrastructure. The work drew protests and lawsuits seeking to halt it.

After the ruling, the Center for Biological Diversity called the decision “horrific.” “The Trump administration and its contractors are hellbent on destroying one of America’s greatest national parks, and the Supreme Court just gave them the green light,” Laiken Jordahl, a national public lands advocate at the group, said in a statement.

The order lifts the injunction while the challenge is litigated.

Reporting based on coverage by Reuters and USA Today.