The U.S. Supreme Court, in a 5-4 ruling Tuesday, granted a GOP request to prevent the winding down of the pandemic border restrictions known as Title 42 – and agreed to decide in its February argument session whether 19 states that oppose the policy should be allowed to intervene in its defense in the lower courts.
Conservative Justice Neil Gorsuch joined the court's three liberals in dissent.
The "current border crisis is not a COVID crisis," he wrote in his dissent. "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."
Under Title 42, immigration authorities are able to quickly remove many of the migrants they encounter – without giving them a chance to ask for asylum protection or other protections under U.S. law. The restrictions were put in place as a public health order by former President Donald Trump's administration in March 2020 when COVID-19 was just beginning to surge in this country.
On Tuesday, the Supreme Court blocked the Biden administration's plans to end the pandemic restrictions, at least temporarily.
In a statement, White House spokeswoman Karine Jean-Pierre said the Biden administration would "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," she said.
In November, Federal District Judge Emmet Sullivan ruled that Title 42 was unlawful, and set it to end Dec. 21. But the Supreme Court paused that ruling on Dec. 19. On Tuesday, the court said the policy will remain in place while the legal challenge plays out, all but ensuring that the Title 42 restrictions will continue for at least the next few months.
It's a victory for Republican attorneys general from 19 states who asked the court to keep the restrictions in place, not because of a public health emergency, but because they say removing the restrictions would likely cause a surge of illegal immigration.
Immigration advocates have argued that Title 42 was intended to block asylum-seekers' access to protections under the pretense of protecting public health.
"Keeping Title 42 will mean more suffering for desperate asylum-seekers, but hopefully this proves only to be a temporary set back in the court challenge," said Lee Gelernt, at lawyer with the ACLU, which has been challenging Title 42 in court for years.
Meanwhile, migrants are continuing to arrive at the southern border in large numbers and the Biden administration has yet to announce a long-term plan on asylum.
In El Paso, the daily arrivals are dropping, but shelters are at capacity. Hundreds of migrants have ended up on the streets, and the mayor has declared a state of emergency.
The city is transforming the convention center and two vacant schools into temporary shelters with the goal of providing 10,000 beds for migrants. However, the priority is to move people out of the city quickly. Some nonprofits are busing some migrants to larger airports in Texas that have more flights to destinations people are trying to reach around the country.
The governor of Texas, Republican Greg Abbott, is busing migrants, too, but reportedly only to so-called "sanctuary cities" like Chicago and New York. And those cities are bracing for a surge in arrivals.
Angela Kocherga of KTEP contributed to this story.