New Congress Could Seek to End Biden’s Pandemic Flexibilities, With Impacts for Higher Ed

By Hugh T. Ferguson, NASFAA Senior Staff Reporter

President Joe Biden could be forced to issue his first presidential veto in the coming months should the new Congress successfully terminate the national emergency declaration tied to the coronavirus pandemic, which the administration has used as justification for a number of higher education initiatives, including its student debt cancellation plans.

With the onset of the pandemic in March 2020, the executive branch has been able to implement and extend an emergency declaration that has offered the administration certain flexibilities in allocating resources in order to combat disruptions caused by the pandemic. Each declaration remains in effect for a period of one year and is then subject to expiration if the White House does not publish another extension in the federal register. If the White House does not submit another extension, the national emergency will expire in March of 2023.

Should the 118th Congress take up such a resolution, the White House could have its authority limited and no longer be able to unilaterally extend the federal student loan payment pause or a number of financial aid-related flexibilities, such as excluding state and federal emergency aid from treatment as estimated financial aid and waivers of certain verification elements, to name a few. 

Since 2020, the Department of Education (ED) has been able to continue to carry out a number of waivers and flexibilities for colleges and universities, with the freeze on federal student loan repayments and interest accrual garnering additional attention now that the administration’s debt cancellation plan, that the White House has tied to the payment resumption, will be considered by the Supreme Court.

"COVID-related waivers and flexibilities related to student aid administration are predicated on the national emergency status,” said Karen McCarthy, NASFAA’s vice president of public policy and federal relations. “When the national emergency status no longer applies, then the waivers and flexibilities that have been in place for several years will begin to phase out."

NASFAA’s COVID-19 Web Center & NASFAA’s Student Loan Debt Cancellation Web Center

Even though the chambers will be split, with Democrats retaining control of the Senate and Republicans taking the House, a resolution to rescind Biden’s emergency declaration did make its way through the Democrat-controlled Senate on two occasions — first in March 2022 and again last month, this time by a vote of 61-37 with 12 Democrats supporting the termination. The resolution has not been taken up by the Democrat-controlled House.

Come 2023, once Republicans sort through their leadership elections the resolution could sail through the chamber along with rule changes that could put an end to proxy voting, another pandemic-related policy that has allowed floor votes from members who are not physically in the chamber, and would indicate that COVID-19 restrictions will formally begin winding down.

While the measure could ultimately pass through Congress and land on Biden’s desk, it is unlikely to garner enough votes to override a presidential veto, which the administration has pledged to issue, but will nonetheless demonstrate pressure from the legislative branch, with focus starting to turn to the 2024 presidential election.

Stay tuned to Today’s News and be sure to check out AskRegs for more guidance on the emergency declaration.


Publication Date: 1/6/2023

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