Washington, D.C.

The Court Reads the Statute

On Monday the Supreme Court did something unfashionable: it read a law Congress actually wrote. In an unsigned stay in Mullin v. Friends of the Ruidosa Church, No. 26A560, eight justices allowed the Trump administration to resume border-barrier construction in Texas’s Big Bend Sector while litigation continues. Justice Ketanji Brown Jackson noted that she would have denied the stay. The per curiam opinion is short and dry, which is often how a republic sounds when it is being careful.

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes the secretary of homeland security to build barriers and roads “to deter illegal crossings in areas of high illegal entry,” and to “waive all legal requirements” needed for “expeditious construction.” It also tells the courts they may hear only constitutional claims arising from those waivers. After Homeland Security Secretary Markwayne Mullin—and, earlier, then-Secretary Kristi Noem—invoked that waiver authority in the Big Bend Sector, a river guide, an environmental nonprofit, and a group formed to preserve a historic church in Ruidosa, Texas, sued in the Western District of Texas. On Oct. 2, Judge Kathleen Cardone issued a preliminary injunction halting the work, treating a “major questions doctrine” argument as a constitutional claim.

There Is No Such Thing

The Court was blunt. However labeled, the challengers’ claim alleged that the secretary exceeded his statutory authority, not that he violated the Constitution. “There is no such thing as a ‘constitutional’ major-questions claim,” the justices wrote, as SCOTUSblog reported. They declined to summarily reverse Judge Cardone, but they stayed her injunction. The government, they said, is “exceedingly likely to prevail” on jurisdiction. The injunction impeded “compelling interests” in border security, cost the government nearly half a million dollars a day that cannot be recovered, and those interests outweighed the “aesthetic, recreational, and environmental harm” alleged.

That last sentence will offend people who love the canyons, and Lucid will not pretend the desert is a parking lot. Judge Cardone had noted that the Big Bend Sector covers a large share of the border and a small share of apprehensions. Those numbers belong in a congressional hearing. They do not, under this statute, turn a statutory quarrel into a constitutional case. If Congress wishes to narrow the waiver, it has a building for that purpose, and a new majority arriving in January.

A Border Is Not a Mood

Lucid’s opinion is not that every mile of wall is wise, or that a historic church in Ruidosa is a nuisance. It is that a nation which cannot mark its edge will soon be unable to mark anything else. The Court did not invent a new power for the secretary. It declined to let a lower court invent a new veto. A fence is a crude thing. So is a frontier. The alternative to crude things, in a fallen world, is often not a finer law but no border at all.

References

• Supreme Court: Mullin v. Friends of the Ruidosa Church, 26A560 (Nov. 9, 2026)
• SCOTUSblog: Supreme Court allows border wall construction to continue
• NPR: Supreme Court says border wall construction can continue in West Texas

Photo by Pfc. Dominic Atlas, U.S. Army, via Wikimedia Commons, public domain; cropped and color-adjusted.