WASHINGTON — The Supreme Court has cleared the way for the Trump administration to build a border wall through the scenic and rugged Big Bend sector of west Texas.
The justices on Monday granted an emergency appeal from Trump’s lawyers and set aside a judge’s order that had paused further construction along a 517-mile section of the Rio Grande.
Justice Ketanji Brown Jackson dissented alone and without an explanation.
In an unsigned opinion, the court said federal courts did not have the authority to stand in the way and block efforts along the border.
“The balance of the equities also favors the government,” the court said. “Construction in the Big Bend Sector will diminish the [plaintiffs’] ability to use and enjoy the area. But Congress’s enactment of [the special law] — which permits the Secretary to waive the requirements of environmental protection and other conservation laws — reflects a clear preference for expeditious border construction over the very harms” cited by the opponents.
A broad coalition of environmentalists, cattle ranchers, farmers, river boat guides, outdoor activists and church leaders had gone to court in El Paso seeking to stop the construction.
The Trump administration seeks a “green light to bulldoze one of America’s wildest, most extraordinary landscapes,” said Zeynep Graves, an attorney for the Center for Biological Diversity. “Once Big Bend’s canyons, cultural treasures and wild ecosystems are destroyed, they’ll be lost forever.”
But Trump’s lawyers pointed to unusual measures adopted by Congress that gave the Department of Homeland Security broad authority to construct border barriers “to deter illegal crossings in areas of high illegal entry.” One provision authorized the department’s secretary to “waive all legal requirements” that stood in the way, including environmental protection measures.
U.S. Customs and Border Protection said it does not plan to build a border wall in the Big Bend National Park, with its steep canyons, but said new patrol roads and vehicle barriers would be added.
However, U.S. District Judge Kathleen Cardone, an appointee of President George W. Bush, issued a preliminary injunction on Oct. 2 to halt further work on the border barriers. She said the government’s own evidence showed illegal entries and drug smuggling were much less common in the Big Bend sector.
“For ‘high illegal entry’ to impose any limit, it must at least mean, not ‘the lowest rate of illegal entry,’” she said. “The Bend Sector has the lowest rate of illegal entry along the entire U.S.-Mexico border.”
Solicitor Gen. D. John Sauer filed a fast-track appeal at the Supreme Court and urged the justices to set aside her order and to rule on the underlying legal question. He cited evidence that over four years, there were 89,000 apprehensions of illegal migrants in the Big Bend sector which covers nearly one-fourth of the U.S.-Mexico border.
“The Sinaloa and Juarez cartels operate south of this sector across the Mexico border and seek to exploit any vulnerabilities in United States border protection to traffic humans, drugs and weapons across the border and infiltrate the United States,” he told the court. “Leaving a 300-plus-mile gap in border defenses would act as a dangerous magnet for cartels and other bad actors to exploit as other routes close off.”
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