The U.S. Department of Justice (DOJ) asked the Supreme Court on Oct. 21 to clear the way for border work in Texas’ Big Bend Sector, challenging a judge’s order halting construction tied to three waivers.
DOJ wants the injunction paused while the justices consider the case. It also asks them to handle its emergency filing as a petition for a writ of certiorari and summarily reverse the order.
U.S. District Judge Kathleen Cardone’s Oct. 2 injunction froze projects authorized by the waivers, including related infrastructure and ground-disturbing work. It also suspended the waivers’ effect. Cardone found the challengers likely to succeed on a major-questions claim about the authority used to issue the waivers; the case’s other claims remain unresolved.
The waivers were issued under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Then-Secretary Noem issued the first on Feb. 17, and Secretary Mullin issued the other two on May 15 and July 27, 2026. The waivers exempted the projects from dozens of legal requirements, most concerning environmental protections. The government argues the law permits waivers in areas with high illegal entry; the challengers say Big Bend does not meet that standard.
The government’s application cites more than 89,000 apprehensions by U.S. Border Patrol in the sector from fiscal 2021 through fiscal 2025. Cardone looked at a different comparison: Big Bend accounted for 0.3% to 2.2% of annual border-wide apprehensions over the previous 30 years, and she described it as having the lowest apprehension rate on the U.S.-Mexico border. The figures cover different periods and measures.
The filing says the sector includes 517 miles of Rio Grande border, nearly one-quarter of the U.S.-Mexico border. Waiver-covered project areas span more than 300 miles of proposed barriers and roads; the third waiver also covers an area in the nearby Del Rio Sector.
The government says it awarded contracts for five projects and had completed about three-quarters of a mile of barrier on one project before the injunction. It estimates the suspension costs more than $460,000 per day and says it must reimburse contractors. Cardone found the challengers presented evidence of possible harm to river guides, ranching and the natural environment; they also argue the work threatens cultural resources and local livelihoods.
DOJ says the construction is needed for border security and cites the Supreme Court’s 2019 stay of an injunction against border-wall construction in Trump v. Sierra Club. Its current application asks the justices to take up the case through the certiorari process and reverse Cardone’s order summarily.
