FAIR Urges Supreme Court to Unblock Big Bend Border Wall Construction

Federation for American Immigration Reform (FAIR) says it has filed a brief asking the Supreme Court to suspend a preliminary injunction that blocks environmental waivers for border-barrier construction in the Big Bend sector. The request seeks to let construction proceed while the lawsuit continues, not a final ruling on the case.

The injunction remains in force. The justices have not granted the requested relief. The case is Mullin v. Friends of the Ruidosa Church, No. 26A560.

In its November 4, 2026, filing, the group urged the court to lift the construction pause. Christopher J. Hajec, its deputy general counsel, wrote:

“The Court should see through the tissue paper-thin excuse for this delay of the border wall’s completion, suspend the lower court’s injunction, and let the wall be built while this case continues.”

The injunction keeps construction and waiver use on hold

U.S. District Judge Kathleen Cardone issued the preliminary injunction on October 2. It bars the federal government from waiving environmental and other legal requirements that would otherwise apply to construction in the region. The order blocks construction until the government complies with applicable laws, and suspends the waivers while the lawsuit proceeds. Then-Homeland Security Secretary Kristi Noem and her successor, Markwayne Mullin, issued three waivers earlier in 2026, including for areas in Big Bend National Park.

Cardone explained her reasoning in an October 14 opinion. She found that the plaintiffs were likely to succeed on their claim under the major questions doctrine, which she treated as a constitutional rule requiring clear congressional authorization for decisions of major economic or political importance.

Her opinion pointed to the sector’s share of the border and apprehensions. It covers “over 25%” of the U.S.-Mexico border, she wrote, while accounting for “between 0.3% and 2.2%” of apprehensions. Cardone reasoned that treating the area as one of “high illegal entry” could make the waiver authority apply across the entire border. That is her preliminary assessment, not a final judgment on the lawsuit.

The sides dispute the court’s authority and the costs of delay

The organization argues that federal courts cannot review the waivers unless a challenger identifies a constitutional violation. It says the major questions doctrine is a rule of statutory interpretation, not a constitutional doctrine. Its brief frames the statutory issue as whether illegal entries in the sector meet the law’s “high” threshold for authorizing waivers.

The administration takes the opposing position. It says Congress gave the Homeland Security secretary authority to waive legal requirements and that border-security interests favor lifting the order. U.S. Customs and Border Protection estimated suspension costs of at least $462,800 per day, based on contractors’ rough projections, the government said. The government also said workers had already built about three quarters of a mile of barrier, with temporary field offices, supply yards, a water delivery system and a temporary concrete batch plant installed. The government said Border Patrol apprehended over 89,000 people in the sector from fiscal year 2021 to fiscal year 2025 and seized over 87,574 pounds of marijuana. Solicitor General D. John Sauer called the injunction “baseless” and argued that respondents’ aesthetic and recreational harms cannot outweigh border-security interests. DHS also determined that leaving an open segment without barriers in Big Bend would create a funnel point for illegal-alien crossings and smugglers.

Cardone rejected the administration’s request to pause her order on October 20. The government asked the justices for a stay and summary reversal on October 21. In its application, the government argued that the district court lacked power to hear the major-questions claim because the complaint alleged a statutory violation that Congress barred courts from entertaining. The agencies filed a reply on October 30. Plaintiffs are asking the court to leave the injunction in place, arguing that renewed work could cause lasting damage. Their lawyer described the potential resumption as “immediately resume blasting, bulldozing, road construction, and other border barrier-related construction across one of the most remote and ecologically and culturally significant landscapes in the UNITED STATES.”

Private land and park infrastructure face different plans

The government says it has no current plans to build walls inside Big Bend National Park or Big Bend Ranch State Park. Private property is slated for 30-foot-high steel bollard walls. The parks could instead receive patrol roads, vehicle barriers and related security infrastructure.

The plaintiffs include the Center for Biological Diversity, a church-preservation group, a local landowner and a river guide. The Nature Conservancy has warned that walls, roads, lighting and vegetation clearing can interfere with wildlife movement, including for black bears, bighorn sheep, mule deer and mountain lions. It has urged agencies to consider surveillance-based alternatives. Zeynep Graves, a senior attorney at the Center for Biological Diversity, said Big Bend’s canyons, cultural treasures and wild ecosystems would be lost forever once destroyed, and that only Congress can authorize walling off the border.

The construction pause does not fully resolve land acquisition. Property owners should not assume the injunction ends every land-related proceeding. Requests or legal filings may carry deadlines even while construction is stopped.

The justices have not set a date for a decision

The government’s request remains pending. Emergency applications have no set decision schedule, and the justices may act at any time. No ruling has yet changed Cardone’s order.

Landowners who receive a property request or filing should track its deadlines and consult a condemnation attorney before responding. The next order can be checked on the court docket under No. 26A560.

This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.