By Andrew Chung
Nov 9 (Reuters) – The US Supreme Court gave President Donald Trump’s administration the green light on Monday to proceed with the construction of barriers along the US-Mexico border in a remote region in West Texas that includes Big Bend National Park, fast-tracking one of his longstanding priorities.
The court granted the administration’s emergency request to lift a federal judge’s order halting the border wall’s construction in the region while a lawsuit against the project brought by an environmental group and other challengers plays out.
The Republican president has long touted building or reinforcing barriers along the US-Mexico border as a signature part of his sweeping restrictions on immigration.
But his administration’s push to extend border infrastructure into the national park, around 250 miles (400 km) southeast of El Paso, has faced opposition from local officials, conservationists and even some Texas Republicans.
“The government’s interest,” the court said in a brief ruling, “outweighs any aesthetic, recreational and environmental harm alleged by respondents.”
Liberal Justice Ketanji Brown Jackson was the only member of the court, which has a 6-3 conservative majority, to publicly dissent from the decision.
The lawsuit was brought by the Center for Biological Diversity, a Big Bend-area river guide and a group seeking to preserve a historic church in Ruidosa, Texas, that says its fragile adobe structure is threatened by the border construction.
The plaintiffs challenged a series of waivers issued by the US Department of Homeland Security to expedite construction of roads and barriers in the Big Bend region, avoiding the application of a variety of environmental and conservation laws.
The waivers were issued under a 1996 federal law aimed at facilitating the construction of barriers in areas of high illegal crossings at the southern border.
In Monday’s ruling, the Supreme Court said the law at issue likely precludes judicial review of the claims brought in the lawsuit.
‘HIGH ILLEGAL ENTRY’
Homeland Security Secretary Markwayne Mullin and his predecessor Kristi Noem, Trump appointees who issued the waivers between February and July, found the region to be an “area of high illegal entry,” requiring additional barriers to control the border.
The administration also said that border officials have seized massive quantities of drugs in the region and that cartels operate south of the region in Mexico.
The administration said that most of the construction in the Big Bend sector, spanning more than 300 miles (480 km), will take place on privately owned land. Big Bend National Park would get a 17-mile (27-km) noncontiguous vehicle barrier system but not the kind of 30-foot (9-meter) pedestrian barrier that is slated for other areas, according to the administration.
In August, the administration paused construction in Big Bend after the project drew bipartisan criticism over its potential impact on the park’s landscape and wildlife. Crews had begun clearing land in the park for roads and border security infrastructure, prompting protests and lawsuits seeking to halt the work.
‘ECOLOGICALLY AND CULTURALLY SIGNIFICANT’
Absent the waivers, the project would have to comply with numerous laws including the Endangered Species Act, the National Environmental Policy Act and the National Historic Preservation Act to alter the landscape in “one of the most remote and ecologically and culturally significant landscapes in the United States,” according to the challengers.
They claimed that Mullin and Noem exceeded their authority in issuing the waivers, including by running afoul of the so-called “major questions” doctrine, which the Supreme Court has used to invalidate executive branch actions of “vast economic and political significance” unless Congress clearly authorized them.
The Supreme Court used the doctrine to stymie some of Democratic former President Joe Biden’s key executive actions, but also in February to strike down Trump’s global tariffs — a major loss for him.
In October, US District Judge Kathleen Cardone in El Paso blocked the administration’s project.
Cardone found that the waivers lacked clear congressional authorization and violated the major questions doctrine, noting that Big Bend has, by far, the lowest rate of migrant apprehensions along the entire border.
“Therefore, if the Big Bend Sector is an area of high illegal entry, so is every other sector, and the waiver authority would apply to the entire US-Mexico border,” the judge said.
The Justice Department told the Supreme Court that Cardone’s ruling was baseless.
“The secretary’s waiver authority reflects a crystal-clear, indisputably valid express delegation from Congress that the executive has used for decades to expedite border-wall construction,” the administration said in a filing.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
