There were a couple of eye-raising moments this weekend during an interview of President Joe Biden on CBS’ “60 Minutes.” One was his continued blanket denial that his son Hunter had done anything that had any impact on him or the country. However, it was the President’s sudden announcement that the pandemic “is over” that may have taken some people by surprise, including Administration lawyers still using the pandemic as a basis for policies and programs. This includes a major appellate case this week.
The Administration relied on the pandemic to justify the massive loan forgiveness program at a cost of as much as $1 trillion. The move will be the subject of challenges and defended under the HEROES Act of 2003 as tied to a national emergency, ”when significant actions with potentially far-reaching consequences are often required.”
The pandemic is also being used by states continued crackdowns on those who refuse to get vaccines. New York is moving to fire hundreds of teachers and school administrators.
Private companies like T-Mobile are also moving this month to fire unvaccinated workers.
The President also heralded the removal of masks recently despite the continued requirement for some schools and other locations under pandemic rules (including at my own George Washington University). While at the Detroit Auto Show, Biden declared “If you notice, no one’s wearing a mask, everybody seems to be in pretty good shape.”
Biden’s statement on the end of the pandemic is likely to be cited in a variety of briefs in cases challenging emergency powers and policies used by the Administration. It was just a year ago, in September 2021, that the President imposed such rules to “ensur[e] the health and safety of the Federal workforce and the efficiency of the civil service.” President Biden announced a similar requirement for federal civilian employees. Exec. Order No. 14,043, 86 Fed. Reg. 50,989 (Sept. 14, 2021).
One such example could be the appeal now being considered by the United States Court of Appeals for the Fifth Circuit. The issue of the sweeping pandemic authority being claimed by the Biden Administration is now going before the full court in an en banc rehearing.
U.S. District Judge Jeffrey Brown previously issued a nationwide injunction against the vaccination mandate in January. That was stayed and has resulted in a series of conflicted moves on appeal.
Yet, the Justice Department is still citing the pandemic authority and insisting that “if an employee chooses not to receive a COVID-19 vaccine (and is ineligible for an exception), he simply may no longer be permitted to continue in federal employment, just as an employee would be subject to termination if she chose to stop performing her job or chose to violate workplace policies.”
Here is one such recent brief: DOJ Fifth Circuit brief
Now the President is declaring that the pandemic is over as the Justice Department is defending pandemic policies in various courts. Even if one were to argue that the policy should be reviewed as supported at the time, the continued viability of the policy can now be questioned in light of the President’s own statements. The President’s comments also highlight the fluidity of pandemic policies. While we often look to the CDC on such status statements, it is the President who ultimately decides federal policies on pandemic measures.
If the pandemic “is over,” some may question the continued uncertain status of military personnel and federal employees on vaccine status as well as lingering mask mandates being used in some states and by certain businesses.