The Biden administration was set to end Title 42 on December 21, but the Supreme Court Tuesday said the government could not halt the expulsion of migrants for public health reasons under the Title 42 program.

Former President Trump put the program in place during the early days of the COVID-19 pandemic in order to stop the spread of infections from coming into the United States by untested migrants. The Supreme Court concluded Title 42 must continue while courts assess a lawsuit filed by Republican officials in 19 states who say ending the Title 42 policy would unleash a national “catastrophe.”

USA Today reports that while they are halting the suspension of the program, “the justices announced they will hear arguments about the program in the upcoming year, but limited their review to whether the conservative states may intervene in the litigation. Oral arguments are expected in February. In the meantime, expulsions will continue.”

USA Today writes:

Title 42 permits Customs and Border Protection agents to expel migrants without the usual legal review to Mexico or to their home countries to prevent the spread of COVID-19 in holding facilities. Title 42 has been used to expel migrants more than 2.4 million times since its implementation in 2020 and has bottled up tens of thousands of migrants in Mexican border cities who are waiting to request asylum in the United States.

The Biden administration announced in April that it intended to wind down the Title 42 policy because vaccines and therapeutics had eased the impact of the virus. Separately, a federal court in Washington, D.C., ruled in November that the way the program was created violated the law and ordered the administration to end it by Dec. 21. That mandate was temporarily paused by the Supreme Court.  

Associate Justices Sonia Sotomayor and Elena Kagan would have denied the emergency request from the states and allowed the administration to lift the Title 42 policy, the order noted.

Justice Neil Gorsuch dissented from the court’s ruling Tuesday, joined by Associate Justice Ketanji Brown Jackson. Gorsuch wrote that the court’s decision on the states’ emergency request was “unwise,” because COVID-19, the emergency on which those (Title 42) orders were premised, has long since lapsed.

“The only plausible reason for stepping in,” Gorsuch said, has to do with the states’ concerns about immigration and the situation on the border.

“But the current border crisis is not a COVID crisis,” Gorsuch added.  “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

White House press secretary Karine Jean-Pierre said in a statement that the Biden administration would comply with the high court’s ruling. She also said the administration is advancing its “preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration.

“Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely,” she added.