The Supreme Court upholds Title 42 in the United States while pending legal appeals are resolved

(CNN) — The US Supreme Court ruled this Tuesday that the controversial Title 42 border control implemented under the Trump administration will remain in effect pending legal challenges. The move ensures that federal officials can continue to quickly deport immigrants at U.S. borders for months to come.

The 5-4 decision represented a victory for Republican-led states, which urged the Supreme Court to intervene and block a lower court opinion that would end Title 42. The Biden administration has said it is prepared for the end of the order and that he has taken precautions to avoid chaos and migrant unrest at the border.

The court also agreed to reopen the states’ appeals during this period. The court said it will hear the arguments in the case during the session beginning in February 2023.

Justices Sonia Sotomayor and Elena Kagan said they would reject the request, but did not explain their thinking. Conservative Justice Neil Gorsuch dissented, explaining his arguments in an order joined by liberal Justice Katanji Brown Jackson.

Gorsuch said he “doesn’t dismiss states’ concerns” about border security. However, he noted that Title 42 was put in place to fight Covid-19 and “the current border crisis is not a Covid crisis”.

“Courts should not perpetuate executive orders designed for an emergency because elected officials are unable to address another emergency,” Gorsuch wrote.

Beginning in March 2020, Title 42 allowed U.S. border agents to immediately reject migrants crossing the southern border under the pretext of preventing Covid-19.

Immigrant rights advocates and public health experts have long condemned the use of this public health authority at the US southern border, arguing that it represents an inappropriate pretext for preventing immigrants from entering the country. According to U.S. Customs and Border Protection (CBP), in nearly three years, the authority to deport immigrants has been used more than 2 million times.

At the border, where migrants have been waiting for months inside camps in Mexico, awaiting the end of Title 42 so they can apply for asylum in the U.S., immigrant advocates have tried to spread updates and information, but frustration has grown, especially as temperatures drop.

El Paso, Texas, is at the center of the crisis as thousands of migrants cross that part of the border. The city opened its disused convention center, hotels and government-run shelters in several schools to take care of the arrivals, but some still had to sleep on the streets amid freezing temperatures.

The Department of Homeland Security has an action plan for ending Title 42, which includes increasing resources to the border, targeting smugglers and working with international partners.

Attorney General Elizabeth Preloger acknowledged in the Supreme Court last week that returning to traditional norms at the border would be challenging, but said the Covid-19 pandemic no longer has any basis for upholding the rules.

“The government is in no way trying to minimize the severity of the problem. But the solution to that immigration problem cannot indefinitely be a public health measure that outweighs the public health rationale that everyone now recognizes,” Preloger wrote in a Supreme Court filing.

Lawyers from the American Civil Liberties Union, which represents families covered by Title 42, were sent back to Mexico to underscore the dangers facing asylum seekers affected by the order.

A U.S. Border Patrol agent closes the doors of a van carrying asylum seekers at the U.S.-Mexico border fence near Somerton, Arizona, on December 26, 2022. (Credit: REBECCA NOBLE/AFP via Getty Images)