The U.S. Court of Appeals for the District of Columbia Circuit has denied Texas’ request to intervene in Title 42 legislation, a public health directive that permits border agents to send back migrants without considering their claims for protection, CQ Roll Call reported Tuesday.

“New: The DC Circ rejected Texas’ request to intervene in Title 42 litigation,” CQ Roll Call reporter Suzanne Monyak tweeted.

“Texas argued the Biden admin ‘has a long and controversial history of using litigation settlements to set national policy on important immigration and border security issues.'”

In its order, the court said Texas “has not demonstrated that its motion meets the standards for intervention on appeal.”

The court said Texas could re-submit and file an amicus brief before Oct. 28.

A U.S. appeals court ruled Sept. 30 that the Biden administration can continue expelling migrant families caught crossing the southern border under the COVID-19 pandemic order while a lawsuit challenging the policy proceeds.

The judge’s order only applied to families and not to single adults.

“We are disappointed in the ruling but it is just an initial step in the appellate litigation, and nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” Lee Gelernt, a lawyer for the American Civil Liberties Union, said in a statement.

Two weeks ago, Homeland Security Secretary Alejandro Mayorkas dismissed criticism from a former senior State Department official who called Title 42 enforcement “illegal” and “inhumane,” instead insisting to Yahoo News that while it “is not an immigration policy that we in this administration would embrace,” the policy is a “public health imperative.”

Title 42 was enacted in 1944 and gave the U.S. surgeon general the authority — later transferred to the Centers for Disease Control and Prevention — to determine whether communicable disease in a foreign country poses a serious danger of spreading in the U.S., either by people or property entering the country, the Los Angeles Times reported