The Supreme Court this week issued a per curiam (unsigned and for the Court as a whole) order in Mullin v. Friends of the Ruidosa Church, staying a district court order that blocked construction of border infrastructure near Big Bend National Park and Texas’s Big Bend Ranch State Park at a cost of nearly a half million dollars per day. The order underscores the fact that not every legal claim implicates the U.S. Constitution — and that judges must live with the balances Congress has struck in statute to ensure DHS can secure the border.
Border Patrol’s Big Bend Sector
Of the 20 Border Patrol sectors in the continental United States and Puerto Rico, Big Bend is among the quietest, but also the most challenging.
For example, the Southwest border is 1,954 miles long, and Big Bend sector — between the Lone Star State’s Del Rio and El Paso sectors — is responsible for the longest stretch, “517 miles of river front along the Rio Grande River” or more than one-quarter of the U.S.-Mexico line.
That said, in FY 2023, as Border Patrol agents apprehended more than 2.045 million illegal migrants at that border, fewer than 12,000 of them (.5 percent) were stopped in Big Bend sector, largely because it is among the most difficult places to get to from either Mexico or the United States.
Two points are important to keep in mind, however.
First, that “apprehension” total only measures aliens who agents caught during the second full fiscal year of the Biden administration’s “catch and release” regime — not the ones they missed — and most of the two million-plus aliens stopped in FY 2023 were “give ups”, aliens who came in illegally and waited for agents to arrive to process and, in most cases, release them.
Big Bend is so “big” and remote that few would-be illegal migrants who planned on surrendering to Border Patrol made it a destination. That sector was and is, however, perfect for would-be “got aways”, migrants coming illegally intending to evade agents and make their way into the interior.
Second, much of the Southwest border is now secured by CBP’s “Smart Wall” system, a combination of steel bollard fencing and “roads, detection technology, cameras, lighting and in some cases waterborne barrier or a secondary wall to create a double-layer barrier” to prevent the illicit entry of migrants, drugs, terrorists, and other contraband.
Not Big Bend sector, though, and thus CBP is racing to erect barriers there to ensure that migrants and smugglers who are now impeded by the “Smart Wall” elsewhere don’t head to that weak point in the line.
The Three Waivers at Issue
To that end, and prior to CBP commencing work in the areas at issue in Big Bend sector, the “DHS secretary” issued three determinations — one on February 17 (by then-Secretary Kristi Noem), another on May 15 (by Secretary Markwayne Mullin), and the third on July 27 (also by Mullin) — that portions of Big Bend sector were “area[s] of high illegal entry” and that therefore there was “an acute and immediate need to construct additional physical barriers and roads” in those areas.
Noem and Mullin issued those determinations to waive certain legal requirements and thus expedite the construction of infrastructure in Big Bend sector under authority explicitly granted by Congress.
Specifically, section 102(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) directed the attorney general (AG) and the then-Immigration and Naturalization Service (INS) to “take such actions as may be necessary to install additional physical 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”.
In addition, section 102(c) of IIRIRA waived the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) “to the extent” the AG “determines necessary to ensure expeditious construction of the barriers and roads under this section”.
After the INS was abolished and DHS was created in March 2003, Border Patrol was transferred to CBP and that agency and the new department assumed responsibility for securing the border. As a result, that IIRIRA waiver authority was transferred to the secretary of Homeland Security.
Then, in section 102 of the REAL ID Act of 2005, Congress amended section 102 of IIRIRA to expand that power and grant the DHS secretary “authority to waive all legal requirements” he, in his “sole discretion, determines necessary to ensure expeditious construction of the barriers and roads” required under IIRIRA, “[n]otwithstanding any other provision of law” (emphasis added).
Moreover — and crucially in this case — REAL ID amended section 102(c) of IIRIRA to provide that: (1) only federal (not state) courts could hear challenges to DHS IIRIRA waivers; (2) only constitutional (not statutory) challenges could be brought; and (3) any “judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States”, essentially removing circuit court review to save time.
Finally, section 2 of the Secure Fence Act of 2006 (SFA) directed the DHS secretary to “take all actions” he “determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States”, defined as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
Included in the “actions” available to the secretary to comply with that mandate was the authority to construct “physical infrastructure enhancements to prevent unlawful entry by aliens into the United States ... such as additional checkpoints, all weather access roads, and vehicle barriers”.
Friends of Ruidosa Church
On April 16, three plaintiffs — Friends of the Ruidosa Church, Danny William Miller, Jr. (“a longtime resident of the Big Bend region of Texas and a professional river and outdoor recreation guide”), and the Center for Biological Diversity — filed a complaint against DHS in the U.S. District Court for the Western District of Texas (W.D. Texas), later amended on June 11, seeking injunctive and declarative relief to block the DHS secretary’s determinations and waivers, and thus shut down construction in Big Bend sector.
They alleged those DHS actions violated the “major questions” doctrine, the “Take Care” clause of the U.S. Constitution, due process, and the “presentment clauses”, clauses 2 and 3 in Article I, section 7 of the Constitution, and that the law under which those waivers were issued violated the “non-delegation” doctrine.
The matter was assigned to Judge Kathleen Cardone of the W.D. Texas, and on October 2, she issued a preliminary injunction blocking DHS from “building border barriers or related infrastructure, or engaging in any construction or ground disturbing activities, in” Big Bend sector “until and unless” the department complies “with all applicable laws” (cleaned up).
In her order, she concluded the plaintiffs were “likely to succeed on the merits of at least one of the claims in suit”, though curiously she failed to clarify which one; it wasn’t until 12 days later that she issued an opinion explaining her reasoning.
She ultimately concluded that DHS had violated the major questions doctrine, having found the doctrine “is a constitutional clear statement rule grounded in separation of powers” and thus suitable for mounting a challenge under section 102(c) of IIRIRA as amended by the REAL ID Act.
SCOTUS and the “Major-Issues Doctrine”
On October 21, DOJ asked the Supreme Court to stay and reverse Judge Cardone’s order, and the justices issued their per curiam opinion on November 9.
The Court concluded that the government was “exceedingly likely to prevail on its argument that the District Court lacked jurisdiction to adjudicate respondents’ so-called major-questions-doctrine claim” because regardless of how that claim was “labelled”, it didn’t “’allege a violation of the Constitution of the United States,’ the only type of claim the statute permits district courts to adjudicate” (cleaned up).
Briefly and overly simplistically, the major questions doctrine comes into play when an executive branch agency claims authority over an issue of “vast economic and political significance” without a clear grant of congressional authorization to the agency in statute over that issue.
As the Congressional Research Service has noted: “In requiring agencies to point to clear congressional authorization for their actions in major questions cases, the Supreme Court has ... explained that Congress rarely provides an extraordinary grant of regulatory authority through language that is modest, vague, subtle, or ambiguous.”
One classic example was the CDC’s attempt to extend a nationwide eviction moratorium under its public-health authority in Title 42 of the U.S. Code during the Covid-19 pandemic.
That provision allows the agency to take actions necessary to “prevent the introduction, transmission, or spread of communicable diseases ... from one State or possession into any other State or possession”, and CDC justified its moratorium under the theory that evicted tenants were more likely to move to another state.
In its 2021 opinion in Alabama Assoc. of Realtors v. HHS, the Court tacitly applied the major issues doctrine in concluding that CDC’s interpretation of the statute gave the agency “a breathtaking amount of authority” with no limit aside from CDC’s conclusion that any given action was “necessary” and also exceeded its (much more limited) statutory powers.
The waiver authority in section 102 of IIRIRA as amended by the REAL ID Act is anything but “modest, vague, subtle, or ambiguous”. In fact, it may be the most sweeping waiver authority Congress has ever issued any agency.
Not that it mattered here, however, because as the Court bluntly concluded, “There is no such thing as a ‘constitutional’ major-questions claim”, and for that reason (as noted) held DHS was likely to prevail.
“In addition”, the justices held:
the Government has presented a declaration from a U. S. Customs and Border Protection official, who attests that — because of the injunction — the Government is incurring nearly half a million dollars in costs per day, which “cannot be recouped” if it prevails at the end of this litigation.
For those and other reasons, the Court found, the government had shown it merited a stay of Judge Cardone’s order pending appeal.
IIRIRA “Reflects a Clear Preference for Expeditious Border Construction”
One last point. The plaintiffs in Friends of Ruidosa Church argued that construction in Big Bend would “diminish their ability to use and enjoy the area”.
“But”, the Court explained:
Congress’s enactment of IIRIRA §102(c) — which permits the Secretary to waive the requirements of environmental protection and other conservation laws — reflects a clear preference for expeditious border construction over the very harms respondents assert. And courts “of equity cannot, in their discretion, reject the balance that Congress has struck in a statute.” [Citations omitted.]
Congress makes rules that impact Americans every day, but all of us — judges included — must accept the outcomes. And the legislative branch has made clear that DHS is free to take the steps necessary to secure the nation’s borders. Let’s hope the judges in the Western District of Texas and nationwide understand that now.