The Supreme Court let the Trump administration resume border-barrier construction across the Big Bend region on November 9, staying a district judge's injunction while the lawsuit continues. The unsigned opinion said the government was "exceedingly likely to prevail" because the lower court probably had no power to hear the case.
The justices said the challengers' major-questions argument is a claim about statutory authority, not a constitutional one, and federal law lets courts hear only constitutional challenges to the waivers. On November 10, outgoing Republican Sen. John Cornyn and incoming senator James Talarico both criticized the project, citing the region's low crossing numbers.
Why it matters
The Supreme Court let $7.5 billion in West Texas border work resume, showing how far the government's waiver power can reach.
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Key Indicators
$7.5B
Value of five contracts under injunction
Barnard Construction holds about $2 billion, Fisher Sand & Gravel about $3.8 billion, and Southwest Valley Constructors the remaining $1.72 billion.
5
Contracts affected by the injunction
All five federal border-infrastructure contracts in the Big Bend Sector were barred from ground-disturbing work before the Supreme Court stayed the injunction.
500+ miles
Span of the Big Bend Border Patrol Sector
The injunction covered the entire sector across West Texas, from Hudspeth County to the Del Rio area.
$462,800
Daily cost during the pause
CBP's estimate of daily costs while construction was halted; the Supreme Court lifted the pause on November 9.
0.3%–2.2%
Big Bend share of border apprehensions
Judge Cardone's figure for the sector's share of people apprehended at the southern border, compared with more than 25% of the border's length.
$960.4M
Barnard's Big Bend 3 contract
Covers 56 miles of the Rio Grande from Hudspeth to Presidio counties; CBP ordered part of the work demobilized on September 24.
14 events
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November 2026
Texas senators break with Trump on Big Bend wall
LatestPolitics
Outgoing Republican Sen. John Cornyn, in a column published November 9, wrote that a wall is "not the best solution" for parts of the region and pointed to low illegal crossings. Incoming senator James Talarico also opposed the project.
Supreme Court stays Big Bend injunction
Legal
The justices granted the administration's emergency application, allowing border-barrier and road construction to resume while the case continues. The unsigned opinion said the district court likely lacked jurisdiction, because a major-questions claim is statutory rather than constitutional. Justice Ketanji Brown Jackson said she would have denied the stay.
October 2026
Plaintiffs urge justices to keep construction halted
Legal
In a 40-page filing, lawyers for the Center for Biological Diversity, Friends of the Ruidosa Church and a local river guide argued that DHS's earlier voluntary pauses show the project can wait for a district court ruling.
Administration asks Supreme Court to lift injunction
Legal
Solicitor General D. John Sauer filed an emergency application asking the justices to pause Cardone's order and to grant review and summarily reverse it, arguing the district court had no power to hear the major-questions claim.
Cardone issues written opinion on the injunction
Legal
The judge said the challengers were likely to win on their claim that the major questions doctrine barred the DHS waivers, noting Big Bend accounts for 0.3% to 2.2% of border apprehensions despite holding over 25% of the border.
Trump administration files motion to lift Big Bend construction pause
Legal
The administration asked Judge Cardone to suspend the October 2 preliminary injunction while it seeks review from the U.S. Supreme Court, citing $462,800 per day in pause costs and $7 million to demobilize crews and equipment across the five projects. The filing characterized the injunction as "unprecedented" and illegal.
CBP silent on contract status
Reporting
Engineering News-Record reports CBP has not disclosed whether it issued stop-work orders or contractors are demobilizing.
Judge Cardone issues injunction
Legal
Preliminary injunction bars border barriers and ground-disturbing activity across the entire Big Bend Sector and stays DHS waivers.
September 2026
CBP construction pause lapses
Agency Action
The agency's extended pause on in-park construction ends.
CBP orders Barnard to demobilize part of Big Bend 3
Agency Action
Customs and Border Protection told Barnard Construction to "promptly execute an orderly demobilization" on part of its 56-mile Big Bend 3 project, citing a lack of real estate clearance and road access and refusing the contractor's requested standby rate.
Steel panels erected in Hudspeth County
Construction
Contractors begin erecting 30-foot steel barrier panels along a 47-mile stretch, moving from site preparation to vertical construction.
Landowners and Conserve Big Bend sue
Legal
Coalition files suit seeking to halt about 600 miles of planned border-barrier work across five West Texas project areas.
August 2026
CBP pauses park construction
Agency Action
Customs and Border Protection pauses construction inside Big Bend National Park after bulldozers were seen clearing land.
July 2026
DHS issues construction waiver for Big Bend
Legal
Department of Homeland Security issues federal waiver bypassing environmental and cultural-resource laws to expedite border construction.
Scenarios
1
Fifth Circuit lifts the injunction, construction resumes
Possible
Resolves by Q2 2027
Discussed by: Legal observers citing the Fifth Circuit's record in border cases; DHS says it is working with the Justice Department on its response
The Supreme Court granted the stay on November 9, not the Fifth Circuit. The Fifth Circuit does not hear this case because IIRIRA sends review directly to the justices.
2
Injunction holds; construction stays suspended
Likely
Resolves by Q1 2027
Discussed by: Plaintiffs' attorneys and environmental groups; the injunction requires compliance with "all applicable laws"
This did not happen. The Supreme Court granted a stay on November 9, allowing construction to resume while the case continues.
3
Case settles; work resumes under modified plan
Unlikely
Resolves by End of 2027
Discussed by: The plaintiff coalition includes landowners, businesses, and environmentalists who may negotiate design changes
After the injunction, DHS redesigns the park segment or agrees to mitigation measures. The parties settle, and construction resumes under a plan that accommodates environmental or flood-control concerns, possibly with altered barrier design or routing.
4
Justices agree to hear the merits after the emergency fight
Possible
Resolves by Q2 2027
Discussed by: The administration asked for full review in its October 21 application; SCOTUSblog's coverage of the briefing
Rather than simply granting or denying a stay, the Supreme Court takes the case on the merits and sets argument on whether the DHS secretary's waiver authority covers the Big Bend sector. Construction stays blocked in the meantime.
5
Supreme Court stay remains in place through the appeal
Likely
Resolves by Q2 2027
Discussed by: The November 9 per curiam order and IIRIRA's direct-review provisions
The Supreme Court's stay lasts while the government's petition for certiorari is filed and resolved. If the justices deny review, the stay ends automatically; if they grant it, the stay lasts until judgment. Construction can continue in the meantime.
Historical Context
2 moments from history that rhyme with this story — and how they unfolded.
1 of 2
2005-2008
Secure Fence Act and the REAL ID waiver (2005-2008)
Congress passed the Secure Fence Act of 2006 authorizing hundreds of miles of border fencing along the U.S.-Mexico border. The REAL ID Act of 2005 had given the DHS secretary power to waive environmental and other laws deemed necessary for expeditious barrier construction.
Then
DHS Secretary Michael Chertoff used the waiver to bypass environmental review and other requirements, and courts upheld the authority as constitutional.
Now
Hundreds of miles of fencing were built, and the waiver authority became the standard legal tool DHS used to fast-track border infrastructure in later administrations.
Why this matters now
Cardone's injunction stays the modern version of this waiver authority, forcing DHS back into the environmental review process the Secure Fence Act era was designed to avoid.
2 of 2
2019-2021
Trump v. Sierra Club border wall litigation (2019-2021)
Environmental groups led by the Sierra Club sued to block border wall construction funded with diverted military appropriations. A California district court issued a preliminary injunction stopping the work.
Then
The Supreme Court in July 2019 stayed the injunction, allowing construction to proceed with Pentagon funds while the case continued in lower courts.
Now
The litigation dragged on for years and delayed some segments, showing that court challenges can slow but rarely permanently stop border barrier programs.
Why this matters now
The current Big Bend case follows the same pattern — an injunction halting construction — but the stakes are higher because DHS's waiver authority itself has been stayed, not just the funding mechanism.
