What Does This Mean: The Pandemic Is Over?

Discussing what Zhou means by any given statement or jumble of sounds he may utter probably seems to most like a fool’s errand. However, he is legally recognized to occupy the office of POTUS, so his utterances—to the extent they can be deciphered—do make a difference. The POTUS is, after all, CinC of the US military, and Chief Executive of the US government. More than a few would subscribe to the idea of the Unitary Executive which holds that, ultimately, the executive power of the government is vested in the person of the POTUS—all other officers of the Executive Branch derive their powers from the POTUS.

Thus, while foreign powers such as Russia or China may be agnostic on matters of US constitutional law, they do have a sense for the significance of presidential utterances and they do have a responsibility to their populations. When a POTUS—even such a one as Zhou—states to the world for the second time that the US military will defend Taiwan against China, it’s understandable that China will take that to be official US policy, rather than waiting to interpret some Interagency pronouncement that may or may not come. China can be forgiven for even doubting the effective existence and makeup of The Interagency and relying instead on utterances of the POTUS. Xi Jinping cannot be reasonably expected to rely upon assurances from lower level Interagency officials that Zhou is a knucklehead whose utterances are without meaning or practical significance.

By the same token, the Judicial Branch of the US government, whose duty it is to interpret the constitution and laws of the United States, will in certain circumstances find themselves in the position of interpreting official public utterances of the POTUS. Naturally, lawyers subordinate to the POTUS will attempt to influence the understanding of such utterances, but when those utterances express powers and policies that flow from the POTUS and the POTUS alone, judges will have to consider the plain meaning of utterances by the POTUS that express the POTUS’ understanding of the matter.

So, when Zhou states to all the world—and more particularly to all the residents of these United States—that “the pandemic is over”, that statement has a special significance because the POTUS’ emergency powers are what ultimately are behind the Covid Regime. As a result, lawyers this morning are scratching their heads, and it’s not simply to express their theoretical bafflement—if that’s a word. Lots of people in all walks of life are regularly baffled by Zhou utterances, but this particular utterance has very practical consequences and cannot be dismissed, especially not by judges, as simply the maundering of a knucklehead. Shouldn’t presidential pronouncements or utterances addressed to the world be considered controlling authority?

Jonathan Turley expresses the situation this morning:

Jonathan Turley @JonathanTurley

The President's sudden announcement that the pandemic “is over” that may have taken some people by surprise, including Administration lawyers still using the pandemic as a basis for policies and programs. This includes a major appellate case this week.

jonathanturley.orgBiden Declares Pandemic “Over” Despite Continued Use in Policies and ProgramsThere were a couple of eye-raising moments this weekend during an interview of President Joe Biden and CBS’ “60 Minutes.” One was his continued blanket denial that his son Hunter …

The power to declare a state of emergency for the nation is, in my understanding, unique to the POTUS. An undersecretary or even a cabinet secretary cannot do so. Nor, in my understanding, can the Legislative or Judicial branches issue such a declaration. Even so exalted a body as the CDC can’t do that. Logically, therefore, if the POTUS declares “the pandemic is over” that would seem to mean that all emergency measures of the Covid Regime must fall by the roadside—injection mandates, masking mandates, et cetera and so forth.

Now, it so happens that, in the deliberate fashion of the American legal system, various challenges to the Covid Regime have been winding their ways through the courts. It would seem to follow that, based on this Zhou utterance, the plaintiffs challenging the Covid Regime should prevail simply because the issue is now moot—or something like that. As Turley says—citing the specific language of the POTUS’ legal department (the DoJ):

Yet, the Justice Department is still citing the pandemic authority and insisting that “if an employee chooses not to receive a COVID-19 vaccine (and is ineligible for an exception), he simply may no longer be permitted to continue in federal employment, just as an employee would be subject to termination if she chose to stop performing her job or chose to violate workplace policies.”

Here is one such recent brief: DOJ Fifth Circuit brief

Now the President is declaring that the pandemic is over as the Justice Department is defending pandemic policies in various courts. Even if one were to argue that the policy should be reviewed as supported at the time, the continued viability of the policy can now be questioned in light of the President’s own statements. The President’s comments also highlight the fluidity of pandemic policies. While we often look to the CDC on such status statements, it is the President who ultimately decides federal policies on pandemic measures.

If the pandemic “is over,” some may question the continued uncertain status of military personnel and federal employees on vaccine status as well as lingering mask mandates being used in some states and by certain businesses.

And, in fact, the argument gains strength because in recent weeks we’ve been seeing the mandates being rolled back vis a vis, for example, military personnel. Does that mean that word filtered down to the personnel policy wallahs in the military that the pandemic is, indeed, “over”? Judges will be called upon to sort this out and make rational sense of it all. Americans are constitutionally averse to different standards for persons in essentially identical situations. Moreover, these measures must all be reasonably related to a reasonably identifiable emergency in the first place. The initial panic has clearly passed, and the scientific picture—including the dangers to public health of mandated experimental genetic medications and various lockdowns and other measures—is coming into increasing focus. Judicial clarification of these issues will be welcome and should come. It’s important for the future and there are weighty matters to be considered. The Fifth Circuit, having just issued a huge decision in the First Amendment field, has an emergency Covid Regime case before it:

Biden’s statement on the end of the pandemic is likely to be cited in a variety of briefs in cases challenging emergency powers and policies used by the Administration. It was just a year ago, in September 2021, that the President imposes such rules to “ensur[e] the health and safety of the Federal workforce and the efficiency of the civil service.” President Biden announced a similar requirement for federal civilian employees. Exec. Order No. 14,043, 86 Fed. Reg. 50,989 (Sept. 14, 2021).

One such example could be the appeal now being considered by the United States Court of Appeals for the Fifth Circuit. The issue of the sweeping pandemic authority being claimed by the Biden Administration is now going before the full court in an en banc rehearing.

U.S. District Judge Jeffrey Brown previously issued a nationwide injunction against the vaccination mandate in January. That was stayed and has resulted in a series of conflicted moves on appeal.

As in all such cases, numerous amici briefs will have been filed, providing arguments from the emerging scientific literature. Judges, as human beings, will have been immersed in coverage of these issues, subject as they, too, were to the mandates. Here’s one recent example that takes on added importance at the beginning of a new school year:

Severe common cold cases increasing among young children may be pegged to COVID-19 lockdowns

Doctors are noticing an increase in severe cases of the common cold among some children

This is a highly informative article on a common sense level, and a salutary warning against dumbass declarations of emergencies.

Surely, after putting the nation through two years of faux science measures, we deserve some accountability with an eye to the future.