Supreme Court stays injunction blocking Big Bend border barriers

By Sophie Lindqvist

On November 9, 2026, the U.S. Supreme Court stayed a federal district court’s injunction against border infrastructure in Texas’s Big Bend Sector. Its unsigned opinion in Mullin v. Friends of the Ruidosa Church reached a narrow result. The challengers’ major-questions theory sought to enforce statutory limits, not constitutional rights.

The order gave the federal government an immediate path to resume construction. It removed the respondents’ immediate freeze on the project through a preliminary injunction. The Supreme Court did not decide the waivers’ final legality. Instead, it found the government highly likely to win its jurisdictional argument.

What did the Supreme Court decide?

The unsigned ruling stated: “We grant the requested stay.” Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) gives the Homeland Security secretary broad power to build border barriers and roads to deter illegal crossings in areas of high illegal entry into the United States.

Section 102 also permits waiver authority (power to dispense with all legal requirements) when necessary for expeditious construction. Judicial review is sharply limited. Under §102(c)(2)(A), district courts may hear only claims alleging a violation of the U.S. Constitution. They lack jurisdiction over nonconstitutional claims.

The court applied that limit to the so-called major questions doctrine (a rule requiring clear congressional authorization for broad government action). The respondents did not allege that the waivers themselves violated the Constitution. Their theory instead charged that the secretary exceeded the powers Congress granted.

Citing Dalton v. Specter (1994), the court drew a familiar line. Claims that the executive branch exceeded its statutory powers are not constitutional claims. A constitutional label on the complaint did not alter the claim’s substance.

How did the dispute reach the Supreme Court?

Earlier in 2026, the secretary invoked Section 102 in the Big Bend Sector. U.S. Customs and Border Protection designates that U.S.–Mexico border region. The secretary found high levels of illegal entry there. Additional barriers were required.

The project proceeded under waivers of a variety of environmental and conservation laws. Three respondents challenged those waiver determinations in the U.S. District Court for the Western District of Texas:

• An individual river guide.
• An environmental nonprofit.
• A nonprofit dedicated to preserving a historic church in Ruidosa, Texas.

The respondents argued, among other things, that the waivers violated the major questions doctrine under Article I, Section 1 of the U.S. Constitution. They said construction would reduce their ability to use and enjoy the area.

On October 2, 2026, the U.S. District Court for the Western District of Texas entered a preliminary injunction (a temporary order stopping the challenged action). The order blocked the secretary’s waivers and halted all associated construction.

The court acknowledged that its jurisdiction reached only constitutional claims. Even so, it treated the major-questions claim as constitutional. It viewed the doctrine as a clear-statement rule grounded in separation of powers.

The district court also held that the claim was likely to succeed on the merits. It found that the secretary lacked clear congressional authorization to issue the waivers.

Section 102(c)(2)(C) denied the Fifth Circuit jurisdiction to hear the case. The Solicitor General therefore asked the Supreme Court for either summary reversal or a stay of the injunction. The Court granted the stay.

Why did the court reject the constitutional claim?

The court acknowledged that several interpretive canons reflect constitutional principles. Those included constitutional avoidance, federalism clear-statement rules and the presumption against retroactivity.

But courts use those canons to resolve statutory questions. They do not convert an ordinary excess-of-authority claim into a constitutional claim. The same rule applies to the major questions canon of statutory interpretation.

The opinion was categorical: “There is no such thing as a ‘constitutional’ major-questions claim…” The court therefore found that the district court lacked jurisdiction to adjudicate that claim.

The court also addressed the competing interests. Respondents identified aesthetic, recreational and environmental harm. They said construction would diminish their ability to use and enjoy the area.

Congress’s enactment of IIRIRA §102(c), which permits waiver of environmental-protection and other conservation laws, reflected a clear preference for expeditious border construction. That statutory balance favored the government’s interest over the asserted aesthetic, recreational and environmental harms. Courts exercising equitable judgment cannot casually overturn a balance Congress has struck.

Justice Jackson essentially dissented from the unsigned opinion.

What does the ruling mean for practitioners?

The decision turns on the claim’s substance, not its label. A challenger must identify an actual constitutional violation before asking a district court to adjudicate statutory authority. The constitutional label functions like a nameplate on the complaint; the alleged violation still controls.

When an agency relies on an IIRIRA waiver, that threshold matters from the outset. For practitioners, the immediate filing task is to separate constitutional allegations from statutory-excess arguments and then test any requested remedy against §102(c)’s restrictions on judicial review.

The stay removes the injunction’s immediate barrier to Big Bend construction. Litigants should not treat a constitutional characterization as a substitute for a constitutional allegation.