Unreported / Non-Citable
Background
The Center for Biological Diversity, Friends of the Ruidosa Church, and Danny William Miller Junior challenged Department of Homeland Security waivers authorizing border barriers, roads, and related infrastructure across the Big Bend Sector in West Texas. Issued between February and July 2026 under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the waivers purported to suspend dozens of legal requirements, principally environmental laws, across a 517-mile stretch that includes national and state parks and other public and private land.
After construction began while cross-motions for summary judgment were pending, the plaintiffs sought a preliminary injunction. They presented evidence that the Big Bend Sector had the lowest migrant-apprehension rate of any sector along the U.S.-Mexico border and comparatively low drug-seizure rates. Witnesses also testified that construction threatened river access, ranching and guiding livelihoods, wildlife, riparian habitat, and the area’s recreational, spiritual, and aesthetic value. The court granted preliminary relief on October 2, 2026, and issued this memorandum opinion explaining that decision.
The Court’s Holding
The court held that it had jurisdiction under IIRIRA’s provision allowing claims alleging constitutional violations. Although acknowledging disagreement over the major questions doctrine’s nature, the court treated it as a constitutional clear-statement rule grounded in Article I and separation-of-powers principles, rather than merely a linguistic tool of statutory interpretation.
The court found the plaintiffs likely to succeed on their claim that the Secretary exceeded the authority Congress clearly granted. Reading IIRIRA’s waiver provision together with its authorization for construction “in areas of high illegal entry,” the court concluded that the limiting phrase could not reasonably encompass the Big Bend Sector, which the unrebutted comparative evidence placed last in migrant apprehensions both in total and per mile. It further found likely irreparable harm to livelihoods, river access, wildlife, habitat, and recreational and spiritual interests, while the government faced only a temporary construction delay. The court therefore granted the preliminary injunction, stayed the Big Bend waivers, and barred construction and ground-disturbing activity in the sector unless defendants comply with applicable law.
Key Takeaways
- The ruling is preliminary: it preserves the status quo while the court considers the parties’ pending summary-judgment motions.
- The court treated the major questions doctrine as a constitutional rule, bringing the plaintiffs’ claim within IIRIRA’s narrow allowance for constitutional challenges to waiver decisions.
- The court held that Congress’s reference to “areas of high illegal entry” meaningfully limits DHS’s waiver authority and likely does not cover the border sector with the lowest comparative apprehension rate.
Why It Matters
The decision temporarily blocks border-barrier construction across the Big Bend Sector despite DHS’s attempt to waive environmental and other legal requirements. Its reasoning also gives constitutional significance to the major questions doctrine in a context where the Fifth Circuit had not definitively resolved whether the doctrine is a substantive clear-statement rule or merely a canon of statutory interpretation.
For future border-infrastructure disputes, the opinion suggests that broad statutory waiver language may remain constrained by limiting language elsewhere in the same statute and that courts may scrutinize the comparative evidence supporting an agency’s determination that a particular location satisfies those limits.