President Biden’s decision on Jan. 30 to formally end the covid-19 national emergency this spring, unilaterally relinquishing exceptional powers the executive branch has claimed for three years, is a milestone worth celebrating. If declaring a non-wartime emergency was ever warranted, it was for the outbreak of the then-novel coronavirus in early 2020. The orders gave vital flexibility amid uncertainty about the nature and potency of the virus, and rushed resources to develop, then deploy, vaccines and treatments.
But the time has come — indeed, the time is overdue — to go back to the regular order of implementing sweeping new programs and policies. That requires, with what should be rare exceptions, agreement of the executive and legislative branches. The administration has dubiously used the continuing “emergency” to engineer roughly $400 billion in student loan forgiveness by executive fiat, even four months after Mr. Biden himself said on “60 Minutes” that the pandemic was “over.” The Supreme Court previously stopped the White House from using the emergency declaration to put a moratorium on evictions and to mandate that large employers require their workers to be vaccinated.
Mr. Biden’s announcement ending the emergency as of May 11 came ahead of a House vote on a measure that would have done so immediately. So, the president’s action saved House Democrats from having to take what might have been a tough vote. It also offers a transition of about 100 days for careful implementation. This, we hope, will avoid creating chaos for states, hospitals and millions of people who have been getting Medicaid benefits during the pandemic.
The end-of-year spending package already set an April deadline for when states lose additional funding for Medicaid coverage. Congress has extended telehealth benefits, initially made possible because of the emergency, and allowed Medicare to cover Paxlovid through 2024. But the end of the covid emergency still means that millions will no longer receive free access to tests, treatments and vaccines. Congress should fund boosters so people who are poor and uninsured don’t have a reason not to get the shot. (Mr. Biden’s directive will not affect emergency-use authorizations for vaccines and treatments.)
The worst of covid appears to be behind us, and the infection is on its way to becoming endemic. While the virus has not yet become as predictable as the seasonal flu, and the latest outbreak in China creates the risk of a deadly new variant, life has returned to something that resembles normal for most people. Around 500 Americans still perish daily from the virus. But federal officials say covid is no longer one of the top five causes of death in the United States.
Only the most urgent situations should be designated national emergencies, but they’ve become troublesomely routine. A total of 136 laws give the president special powers when he declares a national emergency. The Brennan Center for Justice says there are 42 declared national emergencies currently in effect. The oldest still on the books stems from the Iranian revolution in 1979, which provides the legal basis for many U.S. sanctions. The emergency declared after the terrorist attacks of Sept. 11, 2001, remains in effect. There is no record that the national emergency declared by President Barack Obama in 2009 with respect to the H1N1 influenza pandemic was ever officially terminated, according to the Brennan Center.
Most egregious was President Donald Trump’s 2019 declaration of a national emergency to divert military funding to build a border wall for which Congress, which the Constitution gives the power of the purse, refused to appropriate money. Mr. Biden rescinded that emergency on his first day in office, rendering moot a challenge that was before the Supreme Court.
We’ve long argued the legislative branch has surrendered too much power to the executive and should claw it back, rather than forcing the courts to referee every dispute about how an authority is used. One idea would be to pass a law stating that all emergency declarations would expire automatically after three or six months, whereupon Congress would need to vote upon any proposed extension. It is time for both parties to recognize that governing via endless crises — even when they are employed to implement broadly popular policies that win plaudits from key political constituencies — subverts our system of constitutional government.
