Judge Cardone's Memorandum Opinion Rests the Big Bend Wall Injunction on the Major Questions Doctrine

The written reasons for the Big Bend injunction are now on the record. In a memorandum opinion (Document 75) signed on the 14th day of October, 2026, in Friends of the Ruidosa Church et al. v. Mullin et al., No. 3:26-cv-01099-KC (W.D. Tex., El Paso Division), Judge Kathleen Cardone explained the preliminary injunction she granted on October 2 “with a memorandum opinion to follow.” The earlier order named no legal ground. This opinion names one: the Court “rules that the major questions doctrine is a constitutional clear statement rule.” On that basis it finds jurisdiction “because it alleges a Constitutional violation,” which matters because the waiver statute lets challengers sue only on constitutional grounds.

On the merits the opinion turns on a limit in the waiver statute. The Secretary of Homeland Security used the IIRIRA waiver authority to waive “dozens of laws” along a “517-mile” stretch of the border. The Court reads the statute to cover only construction “to deter illegal crossings in areas of high illegal entry.” The government pointed to “89,000” apprehensions in the Big Bend Sector between 2021 and 2025, and the Court treats that gross total as undisputed. But it holds that “the Big Bend Sector is, by far, the sector with the lowest rate of migrant apprehensions along the entire U.S.-Mexico border.” Annual apprehensions there fluctuated between 0.3% and 2.2% of total border-wide apprehensions over thirty years. Its reasoning: for “high illegal entry” to impose any limit, it must at least mean “not the lowest rate of illegal entry.” It concludes that “Plaintiffs are likely to succeed on the merits of their major questions doctrine claim that the Big Bend Waivers were issued in excess of the Secretary’s authority.”

This is a preliminary-injunction opinion, not a merits judgment: the Court says Defendants “only suffer a temporary delay” while it assesses the pending summary judgment motions. And it does not reach the other claims; a footnote says the Court “need not consider likelihood of success on the merits of Plaintiffs’ remaining claims.”

On 10/16/26 the government filed a notice (Document 76) saying it “intend to request a stay of the Court’s preliminary injunction from the United States Supreme Court” if this Court has not granted the stay it requested by Wednesday, October 21, 2026. The notice says that if no decision issues by then, Defendants “will treat the absence of a ruling as a constructive denial.” That is a stated intention, not a filing: the notice records no application to the Supreme Court. It also reports that “the Court has taken no action on Defendants’ motion or scheduling request.”