Not Good Enough

By Noah Rothman

Tuesday, January 31, 2023

 

Joe Biden has heard the voice of the people. Americans long ago voted with their feet in favor of the proposition that the pandemic is over—a sentiment Biden confessed that he shared last September. The public health emergency initiated at the beginning of the outbreak should end along with the public’s perception of the risks still posed by the virus. At long last, the president agrees. He’ll get around to it… in roughly 78 business days.

 

The administration’s lethargy is more than just another example of public sector efficiency. Biden’s decision to allow the emergency he extended for the 11th time on January 13 to sunset on May 11 gives the White House time to come to psychological and administrative terms with the national mood.

 

According to the New York Times, the White House wants to engineer an “orderly transition” out of the crisis. “An abrupt end to the emergency declarations would create wide-ranging chaos and uncertainty throughout the health care system,” a White House statement read. The luxury of an ordered and predictable retrenchment is the sort of thing you don’t have in an emergency. The very invocation of order betrays the emergency’s non-existence. In this, at least, the White House has shown some capacity for cognitive growth.

 

Resistance to fully accepting that the post-pandemic era is upon us is not predicated on an empirical assessment of epidemiological metrics. Even the administration’s Covid czar, Dr. Ashish Jha, sounds unconcerned about the virus’s ever-evolving variants and the efficacy of the tools we’ve developed since 2020 to mitigate their impacts. The pandemic is no longer about the virus. Rather, the public health emergency has become a vehicle for the pursuit and implementation of policies that otherwise lack any legal predicate.

 

When the president ill-advisedly said what the public knew to be true about the pandemic’s retreat, the Washington Post editorial board castigated Biden. Not only was Biden’s observation debatable, they said, but the implications of his observation would imperil so many pandemic-inspired programs they like. They fretted over the millions who would lose Medicaid coverage, the student loans that would have to be repaid, and the border restrictions that Democrats love to criticize before progressive audiences only to expand them when no one’s looking.

 

The White House instantly recognized the political and legal peril of Biden’s observation about Covid’s end, and administration officials rushed to inundate reporters with context designed to water down Biden’s four-word declaration. Given the administration’s investment in the enabling power of the public health emergency, what choice did they have?

 

This month, the administration filed a brief with the Supreme Court arguing that the ongoing pandemic and the downward pressure it once put on American incomes justifies the forgiveness of tens of millions of dollars in federal student-loan debt. Likewise, the Justice Department is presently arguing before appellate courts that the administration can compel travelers to wear facemasks even if the agency issuing those edicts fails to follow proper procedures in their pursuit. You know. Because it’s an emergency and all.

 

Medicaid’s backdoor expansion has had the intended effect. The program’s enrollment ballooned by 25 percent over the course of the pandemic, and putting an end to Medicaid’s continuous enrollment could cost millions of Americans their health coverage. But the substantial costs of that program have increased along with the negation of factors that would reduce the number of Medicaid beneficiaries. The federal government has covered the costs of that increased burden. If Congress wants to assume that obligation in perpetuity, it must lawfully appropriate those sums. And the program’s expansion cannot be predicated on the idea that the able-bodied cannot provide for their own health-care costs.

 

Likewise, Republicans and Democrats both see a lot to like in Covid-related provisions relating to border security—namely, Title 42, which allows for the expedited expulsion of illegal migrants. Biden has called for an end to this provision, even as his administration expands its application to nationals from Cuba, Haiti, and Nicaragua. Fine. If this is such a valuable policy, it should be argued on its own merits and passed into law, presuming the will to make it law exists. If there is no such will, the program cannot continue just because it’s convenient and it was once justified by environmental conditions that have since disappeared.

 

More concerning is the precedent established by justifying the pursuit of politically fraught policy items simply by asserting that someone, somewhere may be experiencing a public health emergency. As Axios reported this week, the Biden White House is intrigued by the prospect of declaring access to abortion services—or lack thereof—a public health emergency. Such a declaration would shake loose taxpayer dollars to fund the activities of abortion seekers and providers and shield medical providers from state-level legal exposure. It would also establish a model to which all future presidential administrations would likely adhere. Why suffer state-level political and social covenants with which the president’s party disagrees when they can be declared a threat to public health?

 

The administration’s belated acknowledgment of reality is welcome, but it’s not good enough. Backed by dubious science and supported by all the right people, invoking public health justifies no small amount of meddling in private affairs by imperious bureaucrats. Congress should not wait until May for the administration to summon the courage to accept normalcy. The Republican-led House should put a legislative end to the public health emergency along with all the remaining mandates it produced, and they should challenge the Senate to do the same. After all, the upper chamber of Congress already passed a resolution ending the Covid-19 emergency last November. Only cynical political calculations could prevent it from doing so again.

 

In ending the emergency, the legislature would repossess some of the powers it delegated over the course of the pandemic—powers that have been gradually returned to Congress by the courts, whether lawmakers want them or not. Putting an end to this farce and the abuses of power it occasioned might impose some caution on this and future presidents who become convinced that they can have whatever policies they want so long as they find enough lab coats to nod along.