A federal judge stopped border wall construction in Texas' Big Bend sector. Now the Trump administration is asking the Supreme Court to overrule her. Solicitor General D. John Sauer filed the request on October 21. He wants the justices to lift the injunction blocking border wall projects there and reverse the ruling behind it.
For now, U.S. Customs and Border Protection (CBP) estimates the idle projects cost more than $460,000 daily. U.S. District Judge Kathleen Cardone stopped construction under three Department of Homeland Security (DHS) waivers on October 2, issuing her written opinion October 14. The money to cover the shutdown comes from funds otherwise available for construction.
At issue: whether DHS can use authority Congress provided to waive environmental and other legal requirements for border construction in this particular region. Congress authorized barriers in areas of “high illegal entry” and gave the homeland security secretary broad waiver powers to get them built.
The number DHS put before the court: more than 89,000 apprehensions from fiscal 2021 through 2025. Nobody disputed it. For Cardone, though, the comparison with other sectors carried more weight. Big Bend had fewer apprehensions than the others, including when measured per mile of border. From her opinion:
For 'high illegal entry' to impose any limit, it must at least mean, 'not the lowest rate of illegal entry.' And the evidence shows that the Big Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border.
So where does that leave the 89,000 apprehensions? Last place along the southern border still leaves agents with plenty of work. DHS shouldn’t have to wait for Big Bend to catch up with a busier sector before addressing it.
Under Cardone’s reading, DHS has to justify Big Bend’s numbers against those elsewhere along the border. Sauer argues the numbers can qualify as high on their own. The statute, he notes, contains no instruction to make that sector-by-sector comparison.
There's another obstacle to her ruling, according to the application. Congress specifically barred courts from hearing anything other than constitutional challenges to these waivers. Sauer says what the plaintiffs are really arguing is a statutory dispute, not a constitutional one. Cardone found a workaround, but DOJ says it's exactly the kind of end-run Congress wrote the restriction to prevent. No court has ever sustained a challenge to one of these waivers on the merits before this one.
A historic adobe church figures into the lawsuit, too. Friends of the Ruidosa Church fears construction damage to the building. It sued alongside the Center for Biological Diversity and river guide Danny William Miller Junior. Witnesses described losing river access for tours and ranching, along with damage to wildlife habitat. Cardone concluded those potential injuries warranted an injunction.
The government already had five projects under contract when Cardone intervened. DOJ’s accounting includes land leases, offices, and security for equipment left sitting at the sites:
Every day that the injunction remains in effect and construction work is suspended, the government’s contractors will continue to incur financial liabilities. Even while work is suspended, contractors still need to pay for land leases, offices, and the security necessary to protect equipment and materials from theft while they are not in use, among other expenses.
Washington owes those reimbursements even if it ultimately wins. A week at CBP’s estimated rate runs past $3.2 million.
RedState has covered the lower crossing numbers under Trump. Sauer's filing makes a practical point about keeping them down: Close one route, and smugglers have reason to try another. Big Bend has hundreds of miles of border to patrol. DHS has good reason to prepare for that possibility while the numbers are lower. If the court doesn't act, every environmental group with a lawyer knows what to do next.