The House’s push to declare an end to the years-long COVID public health emergency may undermine – perhaps fatally – the Biden administration’s legal argument to implement a massive and controversial student loan forgiveness plan.
The powerful House Rules Committee, which sets the terms for debate and voting on bills considered on the House floor, will meet on Monday evening to set up votes for legislation aimed at ending the COVID emergency declaration first declared by the Trump administration in early 2020.
Over the past two years, the Biden administration has repeatedly extended the emergency status, most recently earlier this month. The provision gives the administration certain authorities to respond to the pandemic that it otherwise wouldn’t have. This month’s renewal came four months after President Biden publicly declared “the pandemic is over.”
The Rules Committee will discuss four pieces of legislation, all geared toward dismantling the emergency declarations extended by the Biden administration.
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One bill is a resolution from Rep. Paul Gosar, R-Ariz., stating that the COVID national emergency is “hereby terminated.”
The next bill is the Stopping Home Office Work’s Unproductive Problems Act, or the SHOW UP Act, from Rep. James Comer, R-Ky. Under this measure, federal agencies would be required to assess how much the expansion of telework affected the ability of government workers to do their jobs. Agencies would also be required to insist on the return of federal employees to their offices.
The third bill, the Pandemic is Over Act from Rep. Brett Guthrie, R-Ky., states the public health emergency declared by the Department of Health and Human Services (HHS) in January 2020 is terminated.
The final bill, the Freedom for Health Care Workers Act from Rep. Jeff Duncan, R-S.C., would prohibit HHS from implementing a requirement that federal health care workers must be vaccinated.
The bills, which are expected to pass the House with a Republican majority, are set to go to the floor for votes later this week.
If the House passes the bills, they will head to the Senate, which already voted multiple times last year to end the COVID national emergency declaration – most recently on a bipartisan basis with 62 votes. Then-House Speaker Nancy Pelosi, D-Calif., didn’t give her caucus an opportunity to vote on the measure.
The legislation is likely to pass both the House and Senate, potentially forcing Biden to use a veto for the first time of his presidency. However, the effects of lawmakers declaring an end to the pandemic would also have reverberations well beyond the halls of Congress.
Indeed, congressional action to end COVID-19 emergency declarations may prove problematic, if not fatal, for Biden’s ambitious student loan forgiveness program – whose survival hinges on the legal argument that COVID is an ongoing public health emergency.
Biden announced in August that he will unilaterally cancel $10,000 of federal student loan debt for borrowers making less than $125,000 per year and up to $20,000 for those who received Pell Grants, which support tuition for lower-income students.
Biden described the plan as a way to provide families “breathing room as they prepare to start re-paying loans after the economic crisis brought on by the pandemic.”
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After Biden made his announcement, the Justice Department released a legal opinion stating the secretary of education has the “authority to reduce or eliminate the obligation to repay the principal balance of federal student loan debt, including on a class-wide basis in response to the COVID-19 pandemic.”
The Education Department’s Office of the General Counsel also issued a memo making an identical argument.
However, the administration’s program is facing ongoing legal challenges. In one such challenge, a coalition of states challenged the plan in what became Nebraska v. Biden, claiming it would deprive them of revenue.
In a Supreme Court filing in the case, Solicitor General Elizabeth Prelogar, the official responsible for arguing the federal government’s position before the high court, made clear the Justice Department’s argument for the student loan forgiveness plan is based on a public health emergency.
“In March 2020, President Trump declared a national emergency in light of the COVID-19 pandemic,” the document filed in November states. “That declaration remains in effect, and the government has declared all 50 states, the District of Columbia, and the territories to be disaster areas. COVID-19 has killed more than one million Americans and led to the hospitalization of millions more. COVID-19 continues to kill more than 2,000 Americans a week. The pandemic has also inflicted severe economic harms, including layoffs, spikes in inflation, rising delinquency rates on debt, and projected reductions in lifetime earnings for students who left school during the pandemic.”
The Justice Department wrote an almost identical passage in a Supreme Court filing last month for Brown v. Department of Education, a case in which two plaintiffs challenged Biden’s student loan forgiveness plan on the grounds that the administration didn’t comply with federal law requiring notice and comment in implementing certain regulatory programs.
Both Brown and Nebraska are set to be argued before the Supreme Court on Feb. 28.
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If the nation’s highest court strikes down Biden’s student loan forgiveness plan, his administration doesn’t seem to have a backup plan.
The administration’s “not deliberating or considering any other approach,” Bharat Ramamurti, deputy director of the National Economic Council, told reporters in a briefing last week. “Our lawyers and team are confident in the legal authority. [We’re] not exploring other alternatives.”
Further muddying the legal waters for the administration is that, while it’s trying to argue COVID is still a national emergency (despite congressional plans to the contrary), the Justice Department is simultaneously arguing in a separate court case that COVID is no longer a public health threat.
The administration has been seeking to end Title 42, the public health authority exercised by the Trump administration that allows border officials to expel migrants without allowing them to apply for asylum in order to limit the spread of COVID.
In order to terminate the Trump-era immigration measure, the Biden administration has argued it’s no longer necessary to protect public health.
“The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” Prelogar wrote in a filing last month to the Supreme Court. “The government in no way seeks to minimize the seriousness of that problem. But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”
Despite the administration’s efforts, the Supreme Court last month ordered that the measure remain in place during a legal challenge over its fate being waged between the federal government and several states, including Arizona.
The Supreme Court is set to hear Arizona, et al. v Mayorkas next month.
It’s unclear how the administration will address seemingly contradictory legal arguments before the Supreme Court next month, particularly if Congress votes to end the COVID emergency declaration. Fox News Digital has reached out to the Justice Department for comment.