The Supreme Court ruled on Tuesday in a 5-4 vote that it will put off its decision on whether or not it will end Title 42 until at least June 2023, leaving the immigration rule in place until then. The court may consider arguments, largely from Republican-led states, seeking to keep Title 42 in place.  Supreme Court justice Neil Gorsuch was the only conservative to join three liberal justices in voting against a stay. With the decision, the court will begin hearings on Title 42 in February, with the expectation of making a ruling by the end of June.

Title 42 was established in 1944 to allow the government authority to reject migrants as a way to stop the transmission of contagious diseases. Former President Donald Trump enacted Title 42 in 2020, as the COVID-19 pandemic was on the rise worldwide. With the rule in place, migrants, including some who may otherwise be able to start the process of seeking asylum in the United States, are instead deported in a much quicker manner. President Joe Biden attempted to end Title 42 after pressure from asylum seekers, human rights organizations and a federal judge in the U.S. District Court for the District of Columbia.

Nineteen attorneys general from Republican-led states joined to file an emergency motion to keep Title 42 in place.  Justice Gorsuch joined Justice Ketanji Brown Jackson with the opinion that the court should not act as “policymakers of last resort.”  He wrote: “Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. The current border crisis is not a COVID crisis.”

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