President Biden’s mouth landed his attorneys in a predicament after he declared the pandemic “over” — even as his administration defended 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 vaccine mandates on federal contractors.
In another case, Republican-led states have used the president’s words as part of their lawsuit challenging his student loan forgiveness plan. Mr. Biden said 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 use the president’s words against his administration in court.
SEE ALSO: Biden extends COVID public health emergency after declaring pandemic ‘over’
“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 attorneys already has had to grapple with Mr. Biden’s remarks.
Anna O. Mohan, the Justice Department lawyer defending the contractor vaccine mandate before the 8th U.S. Circuit Court of Appeals, struggled to answer Judge Lavenski R. Smith’s question about Mr. Biden’s comment.
Ms. Mohan said the Centers for Disease Control and Prevention still recommends vaccines. She acknowledged that if the three-judge panel hearing the case sided with Mr. Biden’s view — that the pandemic is not raging like 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 attorneys also had to struggle with presidential words after legal briefs backfired on Donald Trump, particularly in cases involving immigration.
Some judges used Mr. Trump’s ruminations and Twitter posts as evidence against him. A federal judge in California used his words to undercut his attempt to crack down on sanctuary cities. A federal judge in Maryland pasted screen captures of three of Mr. Trump’s tweets into an opinion ruling against him.
President Barack Obama’s words were also tossed back at him, particularly in a case involving illegal immigrant “Dreamers.” Mr. Obama initially said he didn’t have power to protect the young immigrants but later reversed himself and created the DACA program.
Lawyers have argued about the weight a president’s words should be given in legal proceedings over government action, and there is no clear consensus.
Despite taking several cases in which judges cited Mr. Trump’s words or tweets, the Supreme Court generally rejected that approach in its rulings and looked instead to official government documents and actions as authoritative.
Mr. Biden must hope that judges will approach his pandemic statement the same way.
In his Sept. 18 interview, the president said the coronavirus could still be a challenge but wasn’t ruling day-to-day lives.
“The pandemic is over. We still have a problem with COVID. We’re still doing a lot of 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. He said declaring that the U.S. was finished with COVID-19 would be “cavalier” and 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 attorney, how the president’s statement affected the administration’s attempt to revive the vaccine mandate for government contractors, 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 had changed.
Still, she said, “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.
Coronavirus infection rates and hospitalizations for COVID-19 are down, though experts say data around the globe hints at another surge in cases on the horizon. The U.S. has been consistently averaging more than 400 deaths a day from COVID-19 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 past five months.
In the courts, the Biden administration has had a series of losses on its COVID-19 policies. A mandate that medical workers be vaccinated has survived, but mandates on large businesses and on most federal employees, along with the federal contractor policy, have been halted.
The CDC rule requiring masks to be worn on public transit was halted this past spring.
The Biden administration is asking courts to revive the transit masking policy and 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.
He said he expects courts to 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.
• Stephen Dinan can be reached at email@example.com.
• Alex Swoyer can be reached at firstname.lastname@example.org.
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