Big Bend Border Wall Goes to SCOTUS: Government Asks Justices to Stay — and Summarily Reverse — Judge Cardone's Major-Questions Ruling

Big Bend Border Wall Goes to SCOTUS: Government Asks Justices to Stay — and Summarily Reverse — Judge Cardone's Major-Questions Ruling

UPDATE (Oct. 21, 2026): The administration has taken the Big Bend fight to the Supreme Court on an emergency basis. Solicitor General D. John Sauer filed an application (No. 26A560, Mullin v. Friends of the Ruidosa Church) asking the justices to pause Judge Cardone's order and "grant review and summarily reverse it." He called the ruling "baseless" and "unprecedented."

The underlying ruling: on Oct. 2, 2026, U.S. District Judge Kathleen Cardone (W.D. Tex., El Paso) temporarily barred DHS from continuing border-wall construction in the Big Bend region "until and unless" the government complies with environmental and other applicable laws. Her Oct. 14 written opinion found the challengers (an environmental group, a local landowner, and a group preserving a church) likely to prevail under the major questions doctrine: Congress authorized the IIRIRA waiver power only "to deter illegal crossings in areas of high illegal entry into the United States," and "the evidence shows that the Big Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border" — so Congress could not have clearly authorized these waivers. The government's application counters that in 2021–2025 CBP apprehended more than 89,000 immigrants in the sector.

The government's two arguments: (1) the IIRIRA permits judicial review of waiver decisions only for constitutional violations, and a claim that the Secretary "lacked 'clear congressional authorization'" under the statute is not a constitutional claim; (2) even if the major questions doctrine applied, "Congress did clearly authorize the Secretary both to build border barriers and to waive legal requirements." Three waivers issued by Secretaries Noem and Mullin in 2026 opened the Big Bend construction; the region comprises almost one-fourth of the U.S.-Mexico border, and the application notes walls are not currently planned inside the two Big Bend parks themselves.

What it means: the first major-questions test of the wall program reaches the Court's shadow docket 12 days before the midterms — and the government's jurisdictional move (no judicial review of statutory excess, only constitutional claims) is the same strategy as its universal-vacatur petition¹ (The Ledger's Counter-Attack: DOJ Asks SCOTUS to Kill "Universal Vacatur" — the Remedy Behind the Loss Streak): shrink the courts' power to review executive action rather than relitigate the record. A grant here would both revive construction and ratify the review-stripping theory.