On Monday, the Biden administration announced that after renewing the declarations of a national emergency and a public health emergency one more time, the states of emergency will expire without further renewal on May 11—a little over three years after they were first declared by the Trump administration. The announcement highlighted the fact that already the emergency declarations have little impact on most Americans’ daily lives. There are in force no mask or vaccine mandates, no restrictions on schools or businesses, and no required testing. Nonetheless, gradually phasing out rather than immediately canceling the emergency declarations will facilitate an orderly transition for Medicaid and for the border policy known as Title 42, which is predicated on the existence of a public health emergency.
The Title 42 implications are politically and legally complex. Republicans who favor stricter immigration restrictions generally favor keeping in place Title 42—so-named for a federal statutory provision that allows the government to forbid entry into the country of persons who might spread a communicable disease even if they would otherwise be entitled to enter as asylum seekers, as many people stopped at the southern border would. In just under a month, the Supreme Court will hear argument in Arizona v. Mayorkas, in which nineteen Republican-led states seek to defend Title 42 on the ground that the Biden administration has been insufficiently aggressive in its defense of this policy it inherited from the Trump administration.
Title 42’s statutory authorization to stop people from entering the country aims to prevent “the introduction” of a “communicable disease,” but with numerous COVID variants already widely circulating in the United States, some additional infections coming across the border from Mexico would not make much of a difference. Thus, in my view, the Title 42 policy was already difficult to justify. The formal end of the public health emergency could further weaken any defense of it.
The projected end of the public health emergency in May—and with it, the end of the Title 42 policy—could thus moot the Supreme Court case. Oral argument is scheduled for March 1. It is possible that the Court could rule by May 11, but usually the Justices take more than two and a half months between hearing oral argument and issuing an opinion.
For now, however, the announcement that the emergencies will expire probably will not affect the Court’s consideration of the Title 42 case. When the Court accepted the case for argument, it expressly stated that it would consider only a procedural issue: whether the appeals court erred by denying the states’ efforts to intervene to challenge the district court’s grant of a summary judgment for the plaintiffs challenging Title 42. The grant of review expressly stated that the Court would not review the underlying merits—and the existence of a public health emergency is relevant only to the merits.
Student Debt Forgiveness
Yet even as the Biden administration’s announcement of its plan to wind down the emergency declarations made reference to Title 42, it did not refer to a program at issue in two other pending Supreme Court cases to which that declaration is relevant. Later this month, the Court will hear two challenges to the student debt forgiveness program announced last year. In Biden v. Nebraska, six red states argue that the program is unlawful. In Dep’t of Educ. v. Brown, two borrowers who do not qualify for debt forgiveness (at all in one case and in part for the other) also argue that the forgiveness program is unlawful.
The Brown case is especially odd. The plaintiffs say they were unfairly excluded from the forgiveness program, which they also contend is illegal and should therefore be voided. It is not clear how that would benefit them and therefore it is not clear that they should have standing. As Professor Laurence Tribe explained in a column on this site last fall in criticizing the trial court ruling in Brown, invalidation of the student loan forgiveness program “would do precisely nothing to achieve the more generous debt relief that [the plaintiffs] argued they should have been able to urge the [Department of Education] to provide.” Accordingly, in both Brown and the Nebraska case, the Supreme Court has asked the parties to address the threshold question whether the plaintiffs have standing.
However, the Court also asked the parties to brief and argue the substantive question whether the Biden debt forgiveness plan is legal. The end of the national and public health emergencies may be relevant to that question.
A federal statute first enacted in response to 9/11 that goes by the acronym of the HEROES Act empowers the Secretary of Education to “waive or modify” student debt payment obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The Biden administration invoked the COVID national emergency as the basis for use of the HEROES Act. Accordingly, one might think that the end of the national emergency eliminates the authority for the debt forgiveness.
Emergencies and their Aftermath
Nonetheless, although the expiration of the national emergency puts the Solicitor General in a somewhat awkward position in defending the debt forgiveness program, it should not fatally undercut that position.
As the government’s brief notes, the Trump administration utilized the HEROES Act to grant people with student debt a repayment pause as they struggled to make ends meet due to the economic disruption that the COVID pandemic caused. That pause continued into the Biden administration. Thus, there has been bipartisan agreement that the economic effects of COVID, as reflected in the original declaration and subsequent extensions of the national emergency, warranted some form of relief for people who have student loan debt. The end of the national emergency and improving economic conditions do not necessarily undercut that consensus.
Consider an analogy. Suppose that in response to a hurricane, the government offers emergency assistance to people whose homes were severely damaged. The need for the assistance does not vanish once the weather clears and the waters recede. Indeed, that is when the repair work begins in earnest.
Likewise here, the Solicitor General can and almost surely will argue that even as inflation fueled by COVID-related supply chain disruptions eases and the job market remains robust despite rising interest rates, the aftermath of the pandemic has left the poorest holders of student debt in a precarious position. On this logic, if the economic hardships due to the pandemic justified emergency relief when the program was announced, the lingering impact of those hardships still warrants the program, notwithstanding the formal end of the emergency.
To be sure, the program’s challengers have other arguments against the debt relief program. For example, they claim that the elimination of an obligation to pay back a loan’s principal is not a mere “waiver or modification” of a debt obligation like the temporary cessation of interest payments that preceded it. They also argue that the Biden administration’s “novel” and far-reaching use of the HEROES Act triggers the so-called major questions doctrine—under which the Roberts Court has increasingly demanded a clear statement from Congress before allowing broad assertions of agency authority.
The Supreme Court’s conservative super-majority might well find that the plaintiffs have standing in one or both of the student debt forgiveness cases and go on to invalidate the program, quite apart from the upcoming termination of the national emergency. But even though that termination should not undercut the administration’s defense of the program, there is a fair chance that one of the plaintiffs’ lawyers and/or one of the conservative Justices will attempt to score rhetorical points at oral argument (and perhaps in a published opinion) based on the recent announcement.
The COVID-based emergencies may be coming to an end. The ideological polarization they exacerbated lives on—in our politics and in the Supreme Court.