What happened
On November 9, 2026, the Supreme Court granted the federal government's application to stay a preliminary injunction that had halted border-barrier construction in the Big Bend Sector of the U.S.–Mexico border. The Court acted in an unsigned per curiam opinion in Mullin v. Friends of the Ruidosa Church, No. 26A560. The order notes that Justice Jackson would deny the application. No other Justice noted a dissent, and no separate opinion was filed.
The application was filed with Justice Alito on October 21, 2026. He called for a response, which the respondents filed on October 29, and the government replied on October 30. On November 9 he referred the application to the full Court.
Background
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the Secretary of Homeland Security to waive "all legal requirements" as necessary to ensure expeditious construction of border barriers and roads. The statute provides that a claim arising from a waiver "may only be brought alleging a violation of the Constitution of the United States". Courts "shall not have jurisdiction" over other claims.
In 2026 the Secretary issued waivers for the Big Bend Sector (91 Fed. Reg. 7298, 27969 and 46939, as amended). Respondents are a river guide, an environmental nonprofit and a nonprofit that preserves a historic church in Ruidosa, Texas. They sued in the Western District of Texas. They claimed that the waivers "violat[ed] the major questions doctrine under the U. S. Constitution, Article I, Section 1." On October 2, 2026, the District Court entered a preliminary injunction. It held that the "major questions doctrine is a constitutional clear statement rule grounded in separation of powers," so the claim fell within its jurisdiction.
What the opinion says
The Court held that the government "is exceedingly likely to prevail on its argument that the District Court lacked jurisdiction." It reasoned that the claim, "however it is labeled," alleges that the Secretary exceeded his statutory authority. It relied on Dalton v. Specter (1994): "claims simply alleging" that the Executive Branch exceeded its "statutory authority are not 'constitutional' claims."
The Court said that canons such as constitutional avoidance reflect constitutional principles but are used "in service of adjudicating statutory claims, not constitutional ones," and concluded: "There is no such thing as a 'constitutional' major-questions claim."
On the remaining stay factors, the Court cited a Customs and Border Protection declaration. It says the government is incurring "nearly half a million dollars in costs per day" that "cannot be recouped." The Court also said that Section 102(c) "reflects a clear preference for expeditious border construction over the very harms respondents assert." The injunction is stayed until the government's petition for certiorari is filed and decided.
The other side
Justice Jackson's vote to deny the application is noted without a written opinion.
In their response to the application, the respondents argued that the major questions doctrine "is, at its core, a constitutional doctrine designed to protect separation of powers." They called it "two sides of the same coin" with the nondelegation doctrine, citing concurrences by Justice Gorsuch. They wrote that a major-questions claim "does not merely allege that an agency misread a statute" but "alleges that an agency arrogated to itself quintessential legislative power that the Constitution vests exclusively in Congress." They said their claim is consistent with Dalton, which held only that not every action in excess of statutory authority is "ipso facto" a constitutional violation.
On the equities, the respondents pointed to the District Court's findings that construction would cause lasting harm to the landscape and to their livelihoods. That court found the government faced only a "temporary delay" while summary-judgment motions were pending. The respondents also noted the court's finding that the Big Bend Sector has "the lowest rate of illegal entry along the entire U.S.-Mexico border."
Where it sits in the record
The case comes to the Court directly from the District Court, because IIRIRA §102(c)(2)(C) leaves the Fifth Circuit without jurisdiction to hear it. The government had asked in the alternative for summary reversal. The Court instead granted a stay pending certiorari. The district court's ruling on summary judgment is still pending.
Sources
Record updates report what happened and take no side. Signed analysis is kept apart, in Positions. Published November 11, 2026.