Biden’s end-of-pandemic remark affects COVID cases

President Biden’s mouth has landed his lawyers in a predicament after he declared the pandemic “over” — even as his administration is still defending a web of coronavirus restrictions.

Just days after Mr. Biden made his stunning statement last month in an interview on CBS’ “60 Minutes,” a federal appeals court judge demanded to know how it affected the president’s ongoing effort to impose a vaccine mandate on federal contractors.

In another case, GOP-led states have raised the president’s words as part of their lawsuit challenging his new student loan forgiveness plan, saying part of the administration’s justification was a raging pandemic.

Mr. Biden should expect more of the same as he fights to defend his COVID-19 policies.

“When Biden says these sorts of things, the litigants do put them in their briefs,” said John Vecchione, senior counsel with New Civil Liberties Alliance. “Nobody wants to be the government attorney to go before a court and say there is an emergency when the president said otherwise.”

Mat Staver, chairman of Liberty Counsel, which has represented military members challenging the COVID-19 vaccine requirement, said his group will definitely be using the president’s words against his administration in court.

“We will be planning on using this in litigation since on one hand Biden says the pandemic is over, but he is still to this day forcing service members to get the COVID shot,” Mr. Staver said. “I think the courts will consider Biden’s statements.”

The Justice Department did not respond to a request for comment, but one of its lawyers already has had to grapple with Mr. Biden’s remarks.

Anna O. Mohan, the Justice Department lawyer defending the contractor vaccine mandate before the U.S. Court of Appeals for the 8th Circuit, struggled to answer Judge Lavenski R. Smith’s question about Mr. Biden’s comment.

Ms. Mohan said the Centers for Disease Control and Prevention (CDC) does still recommend vaccines. But she acknowledged that if the three-judge panel hearing the case sided with Mr. Biden’s view that the pandemic is not the raging fire it was a year ago, when the vaccine mandate was imposed, they could send the case back to a lower court with instructions to narrow Mr. Biden’s expansive policy.

Government lawyers have had to struggle with a president’s words before. Former President Donald Trump regularly found his views spit back at him in legal briefs, particularly in cases involving immigration.

Some judges were convinced, using Mr. Trump’s ruminations and Twitter posts as evidence against him. A federal judge in California used the former president’s words to undercut his attempt to crack down on sanctuary cities, while another federal judge in Maryland actually pasted screen captures of three of Mr. Trump’s tweets into an opinion ruling against him.

Former President Barack Obama also found his words tossed back at him, particularly in a case involving illegal immigrant “Dreamers,” in which Mr. Obama had initially said he didn’t have powers to protect them but later reversed himself and created the DACA program.

Lawyers have argued over the weight a president’s words should be given in legal proceedings over government action, and there is no clear consensus.

But the Supreme Court, despite taking several cases in which lower judges cited Mr. Trump’s words or tweets, generally rejected that approach in making its rulings, instead looking to official government documents and actions as authoritative.

Mr. Biden must now hope that’s how judges approach his pandemic statement.

During his Sept. 18 interview, the president said the virus can still be a challenge, but it isn’t ruling day-to-day lives.

“The pandemic is over. We still have a problem with COVID. We’re still doing a lotta work on it. It’s — but the pandemic is over. If you notice, no one’s 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,” Mr. Biden said.

That’s tough to square with the sentiments of his chief medical adviser, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, who says it would be “cavalier” to say the country is done with the virus and said that Mr. Biden’s words were “problematic.”

Three days after Mr. Biden’s interview, the 8th Circuit’s Judge Smith was asking Ms. Mohan, the Justice Department lawyer, how the president’s statement affected the administration’s attempt to revive the contractor vaccine mandate, which has been blocked in the courts.

Ms. Mohan acknowledged that the decision to impose the mandate was made a year ago and said judges could decide that circumstances have changed.

But she added: “The CDC has recently confirmed the vaccination is still highly protective against serious illness among federal contract workers.”

The data suggests Dr. Fauci is right about the reality of the pandemic.

COVID infection rates and hospitalizations are down, though experts say the latest data from across the globe hints at another surge in cases on the horizon. But even at those levels, the U.S. has been consistently averaging more than 400 deaths a day dating back to July.

Public behavior suggests the country sides with Mr. Biden. Measures of traffic show the country is back to pre-pandemic movement, and Google’s mobility tracker — which plots the time Americans spend at home, work and stores or on transit — shows things have settled into a new normal over the last five months.

In the courts, the Biden administration has seen a series of legal losses on its COVID policies. A mandate that medical workers get vaccinated has survived, but separate mandates on large businesses and on most federal employees have been halted, along with the federal contractor policy.

The CDC’s rule requiring masks to be worn on public transit was also halted this spring.

The Biden administration is asking courts to revive that CDC policy, as well as the vaccine mandates.

John Yoo, a former Justice Department attorney and current professor at the University of California, Berkeley, said the administration needs to demonstrate a health crisis to defend some of those policies.

But he said he expects courts to still give more weight to official policy pronouncements than to the president’s interview comments.

“Challengers will no doubt resort to Biden’s comments recognizing that the pandemic is over, but I don’t think it will overcome the judicial deference to the elected branches of government on emergencies,” Mr. Yoo said. “The federal courts have never overridden a presidential determination of an emergency, even when the facts showed that it had passed. But it will present the Biden administration’s lawyers with difficulties in oral argument persuading judges that the emergency is still in effect.”

For more information, visit The Washington Times COVID-19 resource page.

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