One federal judge in El Paso has stopped about 340 miles of border wall and road construction in West Texas. Now the Trump administration is asking the Supreme Court to overrule her, fast.
Solicitor General D. John Sauer filed an emergency application on Wednesday asking the justices to lift U.S. District Judge Kathleen Cardone’s Oct. 2 injunction in the Big Bend Sector. He also asked the Court to take up the case and reverse her outright. Cardone refused the government’s own request to pause her order the same day.
A first in 30 years
Since 1996, federal law has let the Homeland Security secretary waive environmental and other rules that slow border barriers. Sauer told the Court the Cardone ruling breaks new ground, and not in a good way. “Until now, no court has ever sustained a challenge to the substance of a Secretary’s Section 102(c) waiver decision,” the filing says.
That law allows only constitutional claims. So the challengers, led by the leftist Center for Biological Diversity, along with Friends of the Ruidosa Church and a local river guide, argued the waivers violated the “major questions” doctrine. Cardone agreed, calling the doctrine a “constitutional clear statement rule.” Sauer called that “repackaging a statutory-authority argument in constitutional garb.”
Because the 1996 law bars appeals to the circuit courts in these cases, the Supreme Court is the only place left to go.
What’s at stake on the ground
According to the government’s filing:
- The Big Bend Sector covers nearly a quarter of the U.S.-Mexico border, including 517 miles of Rio Grande riverfront.
- Agents caught more than 89,000 illegal crossers there from fiscal 2021 through 2025, with record encounters topping 30,000 a year in 2021 and 2022.
- Seizures have included more than 87,574 pounds of marijuana and over 94 pounds of fentanyl.
- The Sinaloa and Juárez cartels operate just south of the sector.
- The shutdown costs taxpayers more than $460,000 a day.
Leaving “a 300-plus-mile gap in border defenses would act as a dangerous magnet for cartels,” Sauer wrote.
Cardone, by contrast, found that the government’s harm amounted to a “temporary delay,” and weighed it against harm to river guides, a rancher, wildlife and recreational and aesthetic interests.
The other side
Opponents say Big Bend’s rugged terrain made up just 1.3% of border apprehensions in 2025 and that drones and towers are cheaper than walls. Zeynep Graves, a lawyer for the Center for Biological Diversity, said “only Congress can authorize something as consequential as walling off the entire U.S.-Mexico border.”
The bottom line
Congress did authorize it. Lawmakers wrote the waiver law in 1996, and Republicans in Congress set aside $46 billion for the border wall project last summer. What’s missing isn’t permission from Congress. It’s permission from one district judge who put river guides’ views and recreation on the scale against cartel smuggling, and called the government’s side a “temporary delay.”
Cartels don’t care about scenery. They care about gaps. Close the rest of the border and leave 300 miles open, and you’ve drawn smugglers a map.
The Supreme Court should lift this injunction and let the builders back to work. A secure border can’t wait on a single judge in El Paso.