Biden Forced to Reckon with the End of the Covid Emergency

By Noah Rothman

Thursday, March 30, 2023

 

‘What’s behind your decision to end the Covid emergency?” NBC News reporter Kristen Welker asked President Joe Biden in late January. This should have been an easy one. “The pandemic is over,” would have sufficed. That’s what Biden told 60 Minutes anchor Scott Pelley last September. Maybe the president could have said that the United States had experienced “the two strongest years of job growth in history,” which his White House touted as a metric of the relative “grip” Covid maintained “on our economy and our lives.” But Biden didn’t say any of that. What he let slip instead was an admission against his own interests.

 

“The Covid emergency will end when the Supreme Court ends it,” Biden asserted with ponderous confidence. It’s reasonable to infer from this remark that Biden was referring not to the Covid-related national- and public-health-emergency declarations, but to the various pandemic-inspired policies his administration is trying to preserve, the absence of the emergency that supposedly justified them notwithstanding.

 

Biden’s comment constitutes a confession. His administration has dedicated itself to the brazen abuse of the powers on loan to it via the legislative branch in its pursuit of political objectives entirely unrelated to the Covid outbreak and its consequences. Well, Congress is not content to wait for the moment it might passively reacquire the powers it delegated to the executive to meet the measure of an emergency that is long over. On Wednesday, the Senate forced Biden’s hand.

 

With a supermajority of senators voting in the affirmative, the upper chamber of Congress ratified a February House vote that will put an end to the Covid-19 emergency orders implemented by Donald Trump in 2020. The White House insists that it is opposed to such legislation. It argues that Congress would get what it wants on May 11, when the eleventh extension of the Covid public-health emergency is set to expire. Nevertheless, when the bill reaches Biden’s desk, administration officials have said the president will sign it.

 

The Washington Post’s reporting characterizes this development as “largely symbolic,” even though its report echoes the concerns expressed by the Post’s editorial board. The newspaper’s editors had objected to putting an end to the Covid emergency on the grounds that doing so would scuttle all the desirable social engineering that accompanied it. “When the official emergency ends,” the Post’s editors mourned in January, “some 15 million will lose Medicaid coverage; the reason for a student loan repayment pause will end; the rationale for Trump-era border restrictions, still held in place by a court, will disappear.”

 

All that remains true today. Indeed, the White House’s solicitors are still clinging to the executive powers the president summoned into existence during the pandemic.

 

The Supreme Court is expected to issue a ruling this summer on the legitimacy of Biden’s pledge to forgive federal student loans up to $20,000 per borrower. The Education Department insists that the program is justified by the pandemic even if the emergency itself is behind us. But the administration’s legal argument in defense of that program rests on the hardships produced by the pandemic, as does the president’s political case for student-loan forgiveness. “The problem is that the program is not tailored to the emergency,” Fordham Law School professor Jed Shugerman observed. The notion that this initiative could outlive the emergency that inspired it only underscores the fact that it was always an attempt at an unconstitutional power grab.

 

In January, the administration argued that the Centers for Disease Control and Prevention had the authority to force travelers on public transit to wear a mask. The administration claims that that authority is provided by a 1944 law authorizing “sanitation” measures, which the administration reads to include masking. But the plaintiff’s attorney in this case argued that the administration’s lethargic response to a federal judge’s ruling in April 2022 vacating the masking mandate is a clear indication that the White House doesn’t see masks as an “urgent matter of public health.” When the president concedes that the Covid emergency is behind us, that case will only be strengthened.

 

In January of last year, the White House promised that it would challenge a Texas judge’s ruling vacating a Covid-vaccination mandate for federal employees. “We are confident in our legal authority,” then-White House press secretary Jen Psaki insisted at the time. They shouldn’t have been. Last week, a federal appeals court affirmed that judge’s ruling. If the Biden White House wants to continue to contest these decisions, it will have to explain how Biden’s September 2021 executive order authorizing a federal vaccine mandate can be decoupled from — and justified independent of — the “nationwide public health emergency” that it “declared pursuant to the National Emergencies Act.”

 

The end of the emergency will bring about challenges that transcend petty politics. Department of Homeland Security Secretary Alejandro Mayorkas warns that the pandemic-era immigration policy Title 42 will sunset along with the public-health emergency, and a tidal wave of migrants will follow. Likewise, millions will lose health coverage when states are once again compelled to review Medicaid enrollees’ eligibility requirements. Those real challenges won’t be resolved absent congressional intervention. Legislative inaction does not legitimize a backdoor Medicaid expansion by executive fiat, nor does it justify even salutary border-enforcement policies that are not supported in law.

 

Earlier this year, the White House decided to guide the country through “an orderly transition out of the public health emergency.” But an emergency precludes order. Even entertaining the prospect of an “orderly transition” represents an admission that the emergency is over. Surely, the administration will try to make political hay out of how those hard-hearted Republicans are taking away all the pandemic’s promising opportunities. But the congressional GOP is only belatedly acknowledging our shared reality, and the White House is prepared to ratify its verdict. This is the return of the vaunted “normalcy” that Biden pledged to restore. If the administration and its progressive allies are dissatisfied with the return of the pre-pandemic status quo, it’s because going back to “normal” was never their goal.