Biden seen as flip-flopping on the pandemic, again

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“The pandemic is over,” he told CBS correspondent Scott Pelley. “We still have a problem with COVID. We’re still doing a lot of work on it. But the pandemic is over. If you notice, no one is wearing masks, everybody seems to be in pretty good shape. And so, I think it’s changing, and I think this is a perfect example of it.”

Aside from simple inconsistency, the statement may invite legal questions. Biden’s Education Department said the Higher Education Relief Opportunities for Students, or HEROES, Act of 2003 gives it the power to waive student loans due to a national emergency, that emergency being COVID-19, and Biden was careful to reference the pandemic in his initial remarks about the program.

“These targeted actions are for families who need it the most — working- and middle-class people hit especially hard during the pandemic making under $125,000 a year,” he said when the program was announced Aug. 24, less than one month ago.

If the pandemic is truly over, the emergency the entire program rests on does not exist.

The Biden administration has shown inconsistency before regarding the pandemic. The White House’s mask mandate ended six months ago, and the CDC argued in May that Title 42 should be lifted, citing “current public health conditions and an increased availability of tools to fight COVID-19.”

In other areas, the administration is still backing the pandemic. The public health emergency lasts through Oct. 13 and is likely to be extended beyond the midterm elections. There is also a $22.5 billion congressional budget request outstanding, though that was first made in early March.

Biden also took some criticism from the Left for his statement to Pelley because there are still nearly 400 deaths a day from the disease on average.

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But some scholars pointed to it as clearly undermining the legal justification to move such a massive amount of money.

Fordham University law professor Jed Shugerman predicted that Biden’s statements in the interview could one day be cited in court.

“This announcement that ‘the pandemic is over’ would be rightly used to support a plaintiff’s claim that the COVID emergency is just a pretext for a sweeping policy,” he said. “The real motivation, a long-term structural problem with education finance, is a good motivation, but if Biden is relying on the emergency provision of a Sept. 11 statute instead, courts will strike down this policy — and they will cite yesterday’s speech as evidence.”

The Washington Examiner has reached out to the White House and the Department of Education about Biden’s statements.

The Trump administration’s Reed Rubinstein wrote while serving as acting general counsel to the Education Department that the HEROES Act cannot be used for mass cancellation. The Biden administration has since rescinded that legal opinion, but Rubinstein holds that his position is correct, especially in light of the president’s latest statements.

“The president has declared the pandemic over. Accordingly, the administration’s pretextual ‘national emergency’ has ended,” he said. “Therefore, the HEROES Act cannot possibly apply. What the administration is doing is now, by its own admission, utterly lawless.”

College graduates have enjoyed a stronger recovery from the economic impacts of COVID-19-related policies. Unemployment rates spiked during the early days of the pandemic but were much higher for blue-collar workers who didn’t attend college. The unemployment rate peaked at 8.4% for those with at least a bachelor’s degree, compared to 17.6% for those who only graduated from high school. College graduates still enjoy a lower unemployment rate today, just 2% compared to an overall rate of 3.7%.

Defenders of the policy say the HEROES Act does in fact empower the president to transfer student debt, and that he’d have other legal avenues even if it didn’t.

“We’ve been in a national emergency since March of 2020, and the HEROES Act gives the administration expansive authority to alleviate the hardship that student loan borrowers have suffered as a result,” said Persis Yu, policy director and managing council at the Student Borrower Protection Center. “The fact that we’ve been in it for two years is more than enough justification to utilize the act.”

Yu argues that the totality of the emergency must be considered, the overall impact it has had since March 2020 rather than just the remaining threat today. She also said the secretary of education has the authority under the Higher Education Act of 1965 to modify and settle loans in the agency’s portfolio.

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“That’s an additional pathway the president could have used but chose not to,” she said. “There has been a lot of legal scholarship that says this action is within the president’s authority. We’re not generally concerned about the legality of it.”