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Biden’s Covid ‘emergency’ has become a well-worn, flimsy crutch

It's been months since the president declared the pandemic over. Congress should take back his emergency powers.

It’s been four months since President Joe Biden told CBS’ “60 Minutes” that “the pandemic is over,” after which administration officials tripped over one another in a race to provide reporters with wiggle room in an otherwise definitive statement. After all, White House officials reminded the public, the administration was already prepared to extend the public health emergency around Covid.

And for good reason, wrote The Washington Post’s editorial board: If the emergency were to end, so, too, would a lot of desirable policies created as responses to that emergency. “When the official emergency ends,” The Post’s editorial board lamented, “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.” The emergency declaration had become too valuable to let the relative lack of an emergency get in the way. That fall, the president extended the Covid emergency into January 2023. Last Friday, the White House extended it again — for the 11th time.

The legislature should reassert its power to manage a crisis the president himself insists is over.

But the political circumstances have changed in the intervening months. The quasi-legal regime that has empowered the executive branch to experiment with policies that had no legislative basis is a ripe target for the new Congress. The legislature should reassert its power to manage a crisis the president himself insists is over.

Those against ending the public health emergency might argue that the pandemic cannot be “over” because Covid is not over. The BQ and XBB families of the coronavirus’s omicron variant are surging across the country, and deaths attributable to the disease are once again on the rise. But the administration’s pandemic czar, Dr. Ashish Jha, does not sound overly concerned.

The tools that preserve hospital capacity — namely, the Covid vaccines and bivalent boosters — have proven their efficacy, he has said, and Covid-specific antiviral therapies like Paxlovid are widely available. According to Jha, the risk of hospitalization and death from the disease is mostly to people over age 70 who are not up to date on their vaccinations or who decline treatment for serious breakthrough infections. In other words, the risk from Covid is assumed voluntarily, and no legislation or executive order can remedy that.

But the Biden administration’s actions confirm that this rationale is a smokescreen anyway.

The administration, for example, filed a brief this month with the Supreme Court arguing that the pandemic justifies its efforts to forgive tens of millions of dollars in federal student loan debt. It argues that Congress bestowed the executive branch with all the legal authority needs it to maintain a pause on repaying student loans.

The Covid “emergency” has become self-justifying.

The same flimsiness is evident in Medicaid’s backdoor expansion. Since the onset of the Covid emergency, according to The Commonwealth Fund, Medicaid’s continuous enrollment provision has led to a 25% increase in the program’s participants. Ending continuous enrollment could cost as many as 16 million people their coverage. But the federal government has largely borne the increased cost. Many (perhaps most) states would be unable to sustain a burden that has grown without the factors that usually reduce Medicaid enrollment (such as aging into Medicare or finding a new job). But this expensive, legally dubious program was justified by pandemic-era obstacles to the able-bodied’s going to work — restrictions that clearly no longer exist.

Most tellingly, the Biden administration has talked out of both sides of its mouth when it comes to Title 42, which allows for the expedited expulsion of illegal migrants. The administration claims it would like for this rule expire in accordance with a federal judicial ruling, which found that the Centers for Disease Control and Prevention lacked the authority to set immigration policy. Yet at the same time, the administration expanded Title 42 to nationals from Cuba, Haiti and Nicaragua. It is immaterial that Democrats and Republicans alike see the value in this policy. It lacks sufficient legal authorization, which Congress could provide if it were so inclined.

Ahead of the 2022 midterm elections, incoming top Republicans on House committees told Axios that restoring “normal” was their top priority. Ending unjustified and legally dubious Covid-related expenditures would be among their foremost goals. The Oversight Committee would investigate the origins and selective enforcement of Covid-related mandates on the federal workforce. Education and Labor would roll back the Occupational Safety and Health Administration’s overreach and investigate the conduct of school administrators and unions during prolonged school closures and experimental distance learning programs. Ways and Means would claw back the federal aid provided to states that remains unspent before it can be devoted to esoteric programs unrelated to public health. And Energy and Commerce would seek the end of the public health emergency in total.

In the interim, however, Republicans have made more noise about investigating the Biden administration’s response to the pandemic and its origins, instead of reclaiming the authority it lent the executive branch. Some reporters have observed that, in this effort, Republicans will encounter unmovable obstacles in the forms of the Democrat-controlled Senate and White House. Of course, Senate Democrats may reflexively object to the reclamation of congressional authority, as well, solely because it is a Republican initiative. But the previous Democrat-led Senate passed a resolution to end the Covid-19 emergency in November. Former Speaker Nancy Pelosi never gave her caucus the opportunity to vote on that resolution, but the 62 senators who voted for it suggests a bipartisan appetite to move on from the pandemic.

The Covid “emergency” has become self-justifying. It is decoupled from the conditions that precipitated it in the first place, and it now exists to justify policies that would otherwise have no legal predicate. Republicans can and should take back the power Congress granted to the presidency to meet a crisis that almost everyone agrees is over.