An Area of High Illegal Entry

The order Judge Kathleen Cardone signed in El Paso on Friday, 2 October, runs to two pages. It says that the plaintiffs are “likely to succeed on the merits of at least one of the claims in suit,” without saying which one, and promises that “a memorandum opinion will follow.” Its operative sentence is a single prohibition: until the court orders otherwise, the Department of Homeland Security and Customs and Border Protection “SHALL NOT build border barrier or related infrastructure, or engage in any construction or ground disturbing activities, in the Big Bend Sector until and unless Defendants comply with all applicable laws.” Then it goes a step beyond halting the work. “The effect of all ‘Big Bend Waivers,’” the order says, “is STAYED for the duration of this Injunction.”

The waivers are three notices published in the Federal Register this year under section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The first, signed by then-Secretary Kristi Noem and published on 17 February, covers the western stretch of the Big Bend Sector and waives 28 statutes and provisions, among them the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act, the National Historic Preservation Act, the Wild and Scenic Rivers Act and the Administrative Procedure Act. The second, signed by Secretary Markwayne Mullin on 15 May and republished with a corrected map description on 9 June, adds the Wilderness Act, the National Park Service Organic Act and the sections of title 16 on Big Bend National Park, including the one that established it. The third, of 27 July, carries a similar list east through the Lower Canyons of the Rio Grande into the Del Rio Sector. Each is published so that the department can build barriers and roads without complying with the laws it names.

The statute behind them is brief. Section 102(a) tells the Secretary to install barriers and roads “in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Section 102(c), as amended in 2005, gives the Secretary “the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section,” effective on publication. Each Big Bend notice opens with the finding that makes the rest possible: the Big Bend Sector “is an area of high illegal entry.”

The plaintiffs are the Friends of the Ruidosa Church, a group restoring an adobe church in Ruidosa, Texas; Danny William Miller Jr., a river guide; and the Center for Biological Diversity. They sued in April. Their emergency motion of 17 August asked for an injunction after, they said, ground clearing began inside the national park in the first week of August despite an agreement to give 30 days’ notice. Customs and Border Protection announced a pause in the park the same day; the pause, which the government called voluntary, ended on 30 September.

A court with one kind of question

What makes the case unusual is the court’s jurisdiction, which section 102(c)(2) confines in three ways. District courts have exclusive jurisdiction over claims arising from a waiver, but “a cause of action or claim may only be brought alleging a violation of the Constitution of the United States,” and “the court shall not have jurisdiction to hear any claim not specified.” A claim must be filed within 60 days of the Secretary’s decision. And any order of the district court, interlocutory or final, “may be reviewed only upon petition for a writ of certiorari to the Supreme Court.” There is no court of appeals in the path.

The design has held for two decades. The government’s opposition lists waivers back to 2005 and says “every judicial challenge to these determinations has been dismissed,” citing decisions in California, Arizona and the District of Columbia and a 2008 case from the same Western District of Texas, County of El Paso v. Chertoff. Several of those courts found that sections 102(a) and 102(c) supply the “intelligible principle” the nondelegation doctrine requires. As then-Judge Ketanji Brown Jackson wrote in 2019, in a passage the government quotes, “what is set forth in subsections 102(a) and 102(c) is enough.”

So the plaintiffs framed everything as a constitutional claim. They argued that the waivers violate the major questions doctrine, which they called a constitutional clear-statement rule; that the Secretary, by “suspending or dispensing with duly enacted statutes,” breaches the duty under the Take Care Clause; that if the statute does authorise these waivers it delegates legislative power without limit; and that the park and canyon waivers, by setting aside the Wild and Scenic Rivers Act along the entire protected segment of the Rio Grande, amount to an amendment of a statute without bicameral passage and presentment, like the line-item veto struck down in 1998. The government replied that the major questions doctrine is a canon of statutory interpretation, not a constitutional rule, and so falls outside what the court may hear at all; that the Take Care Clause binds the President, who was not sued, and creates no private right of action; and that the nondelegation and presentment claims have been rejected by every court to hear them.

A fact inside a constitutional claim

Most of the plaintiffs’ theories run through the same few words. Their argument is that “areas of high illegal entry” is the limit Congress wrote, and that if those words can be stretched to the Big Bend Sector the delegation has no boundary left. That turns a statutory phrase into a question of fact, and the judge treated it as one. Her order of 21 September setting Friday’s evidentiary hearing listed the first topic as “whether the Big Bend Sector is an ‘area of high illegal entry into the United States.’” She said she did not need oral argument on the law, which had been “robustly briefed.”

The government’s evidence is in the notices. The February waiver says Border Patrol apprehended “over 89,000” people between ports in the Big Bend Sector from fiscal 2021 through fiscal 2025, along with drug seizures led by more than 87,000 pounds of marijuana. The July waiver adds the Del Rio Sector next door, with “over 1,410,330” apprehensions over the same period. The government also argued that it is “within the Secretary’s discretionary authority to determine what constitutes an ‘area of high illegal entry,’” and that Congress “set no specific threshold.” The plaintiffs’ evidence was comparative. According to Marfa Public Radio, which covered the hearing, Adam Isacson of the Washington Office on Latin America testified that the sector makes up 28.5 percent of the southwest border by length but consistently records the least traffic, and the station reports that it accounted for 1.3 percent of apprehensions in the last fiscal year.

The order does not say which claim succeeded or how the judge read those figures. Until the memorandum opinion is filed, it is not possible to tell whether the court has found the waivers unconstitutional, the statute unconstitutional, or something narrower.

What the stay reaches

The practical reach is broad. The government’s notice of 29 September said work on one project, about 61 miles of 30-foot bollard barrier and road in Presidio County, would resume on 30 September, and that because some landowners there had declined to deal with the government it expected to refer “a number” of properties to the Justice Department for condemnation. On a second project, about 17 miles of vehicle barrier within and east of the national park, it said it was reconsidering the scope and expected a decision in the first week of October. The order covers both, since both lie in the Big Bend Sector. A Customs and Border Protection spokesperson told Marfa Public Radio and the Guardian that the agency stood by its assessment and was working with the Justice Department on next steps. The Guardian reports that the agency has awarded five Big Bend contracts worth more than $6bn.

Other judges have ruled the other way on related challenges. In August a judge in Washington denied a preliminary injunction sought by the Presidio Municipal Development District, according to the government’s brief, and on 30 September another judge of the Western District of Texas refused a temporary restraining order in a related case, finding, in words the government quoted to Judge Cardone the next day, that the plaintiffs had not shown a likelihood of success “let alone a substantial one.”

The department has not stopped using the authority elsewhere. The Federal Register on Friday morning, the day of the hearing, carried another section 102 determination, this one for the El Paso Sector in New Mexico, waiving a federal water-rights statute and parts of New Mexico’s water code and rules. Its finding of high illegal entry rests on more than 1,248,000 apprehensions since fiscal 2021. If the government wants the Big Bend order reviewed, the statute names one court that can do it: the Supreme Court, on a petition for certiorari.

Sources

Judge Cardone’s order granting the preliminary injunction (ECF No. 66) and her order of 21 September setting the hearing (ECF No. 56) in Friends of the Ruidosa Church v. Mullin, No. 3:26-cv-01099 (W.D. Tex.), were read on CourtListener, as were the plaintiffs’ emergency motion (ECF No. 34) and reply (ECF No. 39), the government’s opposition (ECF No. 38), its notice on the end of the construction pause (ECF No. 60) and its notice of supplemental authority (ECF No. 63). The scanned order in the separate San Antonio case attached to that notice could not be read as text; it is described here only as the government quoted it. The three Big Bend waiver notices and the 2 October El Paso Sector notice were read in the Federal Register; section 102 and 16 U.S.C. 156 at Cornell’s Legal Information Institute. Hearing testimony and the CBP statement are from Marfa Public Radio’s report (via Texas Public Radio); the contract figure is the Guardian’s. The earlier decisions upholding section 102, the August D.C. ruling and the hearing transcript were not read. The memorandum opinion had not been filed when this was written.