Supreme Court keeps Trump-era immigration policy in place, with conservative Justice Neil Gorsuch dissenting: 'We are a court of law, not policymakers of last resort'

• The Supreme Court kept an immigration policy implemented under former President Donald Trump in place.
• The policy allows the United States to quickly expel asylum seekers at the border on the basis of public health concerns.

The Supreme Court on Tuesday kept a controversial immigration policy enacted under former President Donald Trump in place, allowing the US to turn away asylum seekers at the border.

The pandemic-era policy, known as Title 42, was set to expire last week until 19 Republican-led states filed an emergency request, urging the Supreme Court to maintain it. In response, Chief Justice John Roberts temporarily halted the policy's termination, and Tuesday's 5-4 order represents an extension of that pause.

The order outlines that the court will hear oral arguments on the dispute in February, and the pause will stay in place until a decision is released, likely by the end of June.

Justice Neil Gorsuch, a Trump appointee, joined the court's three liberal justices in voting against the request. In his dissenting opinion, Gorsuch wrote that the court's decisions are "unwise."

"But the current border crisis is not a COVID crisis," Gorsuch, joined by liberal Justice Ketanji Brown Jackson, wrote. "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," he added.

The move delivers a devastating blow to immigration advocates, who have long been fighting for an end to Title 42, first invoked by the Trump administration at the onset of the COVID-19 pandemic in March 2020. The policy enables US officials to quickly expel asylum seekers at the southern border on the basis of public health concerns. More than 2 million people have been expelled from the country since.

"The Supreme Court has allowed Title 42 to remain in place temporarily while the case is ongoing, and we continue to challenge this horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure," said Lee Gelernt, a lawyer with the American Civil Liberties Union, who has been leading the challenge against Title 42.

Immigration advocates sued to end the policy's implementation, arguing that it has denied migrants the right to seek asylum in the US and left them in dangerous situations at the border. They also say Title 42 is being used as an immigration tool and can no longer be justified as a public health response to the coronavirus pandemic.

Last month, a federal judge sided with the advocates, ruling that the restrictions are "arbitrary and capricious" and ordering the Biden administration to end the policy with a deadline set for December 21. The Biden administration agreed.

But 19 Republican-led states, led by Arizona, challenged the decision and asked the Supreme Court to keep the policy in effect. The states argued that ending Title 42 "will cause a crisis of unprecedented proportions at the border," which has already been experiencing an influx of migrant arrivals.

The question before the Supreme Court now is whether states are allowed to intervene in the legal battle, which has been between immigration advocates and the federal government.

White House press secretary Karine Jean-Pierre reacted to Tuesday's news, saying in a statement that the administration will "of course, comply with the order and prepare for the Court's review."

"At the same time, we are advancing our 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," Jean-Pierre added. "Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely."

The White House also called on Congress to pass comprehensive immigration reform.