The Supreme Court on Monday let the Trump administration resume border wall construction in Texas's Big Bend region, staying a federal judge's injunction while the government seeks further review. Justice Ketanji Brown Jackson noted that she would have denied the request.
The unsigned order in Mullin v. Friends of the Ruidosa Church turns on who may hear the case, not on the actual wall. A 1996 immigration law lets the Homeland Security secretary "waive all legal requirements" needed for fast border construction, and allows lawsuits against such waivers only if they allege a violation of the Constitution. The Court said the government "is exceedingly likely to prevail" on its argument that the district court lacked jurisdiction over the challenge.
The challengers had framed their case around the major-questions doctrine, the idea that Congress must speak clearly before an agency claims vast power. U.S. District Judge Kathleen Cardone blocked the waivers and construction on Oct. 2, finding that claim likely to succeed. The Supreme Court rejected the premise.
"There is no such thing as a 'constitutional' major-questions claim," the justices wrote, because the doctrine is a rule for reading statutes, and the plaintiffs' claim "alleges instead that the Secretary exceeded his statutory authority."
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