CNN –
The Supreme Court said Tuesday that the controversial Trump-era border restriction known as Title 42 will remain in place while legal challenges play out, a move that ensures federal officials can continue to quickly deport migrants at U.S. borders. United States at least for the next few months.
The 5-4 order is a victory for Republican-led states that urged the Supreme Court to step in and block a lower court opinion ordering an end to the authority. The Biden administration has said it was prepared for the authority to end and had put precautions in place to avoid confusion at the border and any potential surge of migrants.
In its order, the court also agreed to accept the states’ appeal this term. The court said it would hear arguments on the case during its argument session beginning in February 2023.
Justices Sonia Sotomayor and Elena Kagan said they would deny the request, but did not elaborate on their thinking. Conservative Justice Neil Gorsuch also dissented, explaining his thinking in an order joined by liberal Justice Ketanji Brown Jackson.
Gorsuch said he is “not dismissing the concerns of States” about border security. But Gorsuch noted that Title 42 was put in place to combat Covid-19 and “the current border crisis is not a Covid crisis.”
“Courts should not perpetuate administrative edicts designed for an emergency simply because elected officials have failed to address a different emergency,” Gorsuch wrote.
Since March 2020, Title 42 allows US border agents to immediately turn away migrants who have crossed the southern border in the name of Covid-19 prevention.
Immigrant advocates and public health experts have long decried the use of public health authority along the U.S. southern border, arguing that it was an inadequate pretext for barring migrants from entering the United States. In nearly three years, the authority has been used more than 2 million times to deport migrants, according to US Customs and Border Protection.
At the border, migrants have been waiting in camps in Mexico for months, anticipating the end of the authority to apply for asylum in the US. Immigrant advocates have tried to spread updates and information to migrants, but desperation has grown, especially as temperatures drop.
El Paso, Texas, has been at the center of the crisis as thousands of migrants have crossed the border region. The city opened government-run shelters at its convention center, hotels and several unused schools to accommodate the migrants, though some have still had to sleep outside in freezing temperatures.
The Department of Homeland Security has launched a plan to end the authority that includes increasing resources at the border, targeting smugglers and working with international partners.
The White House said it would comply with the order.
“Today’s order gives Republicans in Congress plenty of time to overcome the political deadlock and join their Democratic colleagues in solving the challenge of our border by passing comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.” White House press secretary Karine Jean-Pierre said in a statement.
Attorney General Elizabeth Prelogar acknowledged at the Supreme Court last week that returning to traditional protocols along the border will be a challenge, but said there is no longer any basis for maintaining the Covid-era rules.
“The government in no way intends to downplay the seriousness of this problem. But the solution to this immigration problem cannot be to extend indefinitely a public health measure that everyone now recognizes has outlived its public health justification,” wrote Prelogar in a document to the Supreme Court.
Attorneys for the American Civil Liberties Union, which represents families subject to Title 42, had stressed in arguments the dangers facing asylum seekers held under the authority and sent back to Mexico.
Lee Gelernt, the lead attorney for the plaintiffs in the case, told CNN in a statement that they are “deeply disappointed” by the ruling, but will continue to fight to end the policy.
“We are deeply disappointed for all the desperate asylum seekers who will continue to suffer because of Title 42, but we will continue to fight to end the policy,” Gelernt said.
Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, called the order “procedurally odd.”
“This order is procedurally odd in that it grants a request to freeze a district court judgment by states that were not even parties to that decision only to decide whether they should have been allowed intervene and defend this sentence on appeal”. Vladeck said. “Title 42 aside, this has enormous potential consequences for states’ ability to fight to prevent the current president from overturning the policies of his predecessors.”
GOP-led states had argued that they would be harmed by lifting the authority because of the influx of migrants entering the United States.
“The border crisis that respondents are strangely seeking and eager to cause would also cause enormous damage to the States,” says a document filed last Wednesday.
This story has been updated with additional reporting.