Groundwork For a Surge

In May, weeks before the new surge, the Centers for Disease Control (CDC) lifted its masking guidance for vaccinated Americans. The move came as the White House was seeking to ramp up vaccination efforts and convince the country that a corner had been turned on the pandemic. The administration had also been pushing school reopenings for months — even as experts were warning that children would spread the virus. In February, Biden had told a young girl on national television not to worry about COVID.

At the time of the May CDC announcement, hundreds of epidemiologists surveyed by the New York Times said they felt blindsided. And 80 percent of those surveyed said they expected masking would be needed indoors for at least another year.

The CDC further announced that it would stop tracking mild breakthrough infections that did not result in hospitalizations or death.

With the new surge, everything has changed. The CDC has issued new guidance recommending that the vaccinated wear masks indoors in areas with “substantial” and “high” transmission — which is now nearly the whole country. The CDC also changed its testing recommendations for vaccinated Americans, whom it previously only recommended testing for if they experienced symptoms. Under the new suggestion, vaccinated individuals should get tested if they come into contact with a COVID-positive person.

Particularly concerning is the fact that children are getting and spreading the virus. The American Academy of Pediatrics reported that, with over 4 million cases early last month, children represented 14.2 percent of all COVID cases. Children’s hospitals around the country are filling up. Places like Dallas County, Texas, have been particularly hard-hit. County judge Clay Jenkins told reporters at a news conference last week that the county had no pediatric ICU beds available; no ventilators “unless one clears.”

Combating Misinformation

While the CDC scrambles to get a hold on the pandemic, the Biden administration has directed its focus to combating misinformation on social media and applying pressure to companies like Facebook to step up their content moderation. In fact, the administration has been waging fierce negotiations behind the scenes with the social media giant to that end.

But there isn’t much the administration can do on the matter on its own.

Professor Dorit Reiss, who teaches tort law and public health law at UC Hastings College of Law in San Francisco, questions whether accountability should come from individuals or government. Reiss notes that there is a tort called “negligent misrepresentation involving physical harm” that could give individuals redress against purveyors of anti-vaccine misinformation. But Reiss warns that the idea of the government regulating online content is dangerous.

“Having the government decide what is misinformation comes with some very real risk,” Reiss says.

One idea that has been floated is to limit Section 230 of the Communications Decency Act (CDA), also known as the safe harbor provision, which provides platforms with legal liability immunity for third party content. Senator Amy Klobuchar (D-MN) has introduced legislation that would carve out an exception to that immunity for content that proliferates health misinformation during public health emergencies.

Reiss opposes the plan on the grounds that it could harm free and open discussion on the internet.

“If we think having platforms for people to communicate is generally a good thing, you want to be careful there.”

Ari Cohn, a First Amendment attorney at the libertarian-leaning technology think tank TechFreedom, agrees with Reiss’s assessment. He says the Klobuchar plan is a waste of effort and doomed to fail in its stated goal.

“The only reason we’re talking about Section 230 is because [the government] wants to enable private lawsuits as a way of forcing the hand of social media platforms,” Cohn explains. “That ignores the key component of a lawsuit, which is having a viable cause of action. Just removing Section 230 doesn’t mean there is a feasible lawsuit against social media platforms. There has to be independent ground on which you could sue.”

Cohn adds: “Misinformation — even if it’s harmful — is still generally constitutionally protected, so there’s really a limit to what you can then sue for.” According to Cohn, there is not much the administration or Democrats can do to combat misinformation, except better messaging.

Federal Inaction

Earlier this month, New York City became the first government in the nation to require proof of vaccination for indoor activities and shows. But so far, no other local or state governments have followed its lead — even though a recent Hill-HarrisX poll found that three quarters of Americans support reinstating mask mandates in their area to stem infections.

The White House and Congress, meanwhile, have declined to implement major pandemic control measures. The Biden administration has largely favored private-sector incentives, individual choices, and state action to slow the pandemic over federal mandates. Even as Republican legislatures and governors prematurely ended federal pandemic unemployment benefits, the administration’s response has been tacit acceptance.

In April, White House press secretary Jen Psaki said that there would be “no federal vaccinations database” or a “federal mandate requiring everyone to obtain a single vaccination credential,” even though a Kaiser Family Foundation survey in June found that requiring vaccines to fly or attend large social gatherings would encourage roughly 40 percent of the unvaccinated to reconsider.

Psaki also dismissed the idea of a federal vaccine mandate, stating, “That’s not the role of the federal government.”

But some legal experts say the government could mandate vaccinations.

“If it properly acts under existing authority and dots its i’s and crosses its t’s by complying with the Administrative Procedure Act or thoroughly documenting an exception, then it may mandate vaccinations,” says New York Law School professor Lenni Benson. “The risk, however, is that some states would sue and establish standing and attack the underlying statutory authority as infringing on state sovereignty or creating an unfunded mandate.”

Benson points to a recent assessment by the Congressional Research Service (CRS) that suggested a vaccine mandate could be on shaky legal ground — though not impossible.

William D. Araiza, a constitutional and administrative law professor and vice dean at Brooklyn Law School, is skeptical of the constitutional validity of a federal vaccine mandate, but he says that a vaccine requirement for travel would “certainly” be within Congress’s power to regulate.

“The only question would be whether that would be a due process violation, by requiring, essentially, that the right to travel by air could only be exercised by those who give up their liberty interest in bodily integrity,” he tells us. “I don’t think that’s a winning argument, but I can imagine litigators would make it.”

Araiza also notes, “Congress could use the commerce power to prohibit people from going into any place where economic business is transacted — a store, a restaurant, a theater, etc. — unless they were vaccinated.” That commerce authority, he explains, also likely extends to ordering businesses to close for a period of time.

Many people want to see the federal government take a more active role in ending the COVID-19 pandemic. In late July, medical groups representing millions of doctors, nurses, and other health professionals issued a statement calling for mandatory vaccinations for health workers.

Social epidemiologist Justin Feldman, of Harvard’s FXB Center for Health and Human Rights, says the country needs to go even further.

“We need to combine vaccination with other public health measures like masking and, in some places, paid shutdowns,” he says.

Feldman, who has been studying the disproportionate impact of COVID-19 on communities of color, calls the lack of federal action beyond its vaccination campaign “alarming.” He says that, at the start of Biden’s term, the CDC should have set clear guidelines for local and state governments to follow, including recommending a range of interventions such as requiring masks, closing nonessential businesses, and limiting the size of public events. He says Congress could compel compliance with the measures by tying it to state and local funding.

While Biden has been showing signs that he’s open to tougher stances — at the end of last month, he ordered federal employees to wear a mask or show proof of vaccination, and the Pentagon is implementing a vaccine requirement for members of the military — the president has shied away from flexing his office’s real power.

For example, the Occupational Safety and Health Administration (OSHA) still has not released enforceable emergency temporary standards (ETS) for most workplaces. While Biden promised such standards on the campaign trail, the rules were delayed thanks to pressure from business lobbying groups, and when they were released, they were limited to health care workers alone.

Biden has also ruled out national lockdowns, for which he would need to seek authorization from Congress. Earlier this month, Dr Anthony Fauci, the nation’s top infectious disease expert, reiterated the position, telling ABC that lockdowns were unlikely because enough people were vaccinated to avoid COVID numbers like those from last winter.

Structural Deficiencies

The president has also shied away from structural reforms that could potentially help with vaccine rollout. One such reform would be federally guaranteed paid time off (PTO). An Axios-Ipsos poll from last month found that 25 percent of unvaccinated Americans would be more likely to get the shot if they had paid leave to do so. A Kaiser Family Foundation (KFF) poll yielded similar results.

The American Rescue Plan offered a tax credit to qualifying employers who provided their workers paid leave to get vaccinated. Some states, like New York, now require employers to provide workers time off to get vaccinated, but eighteen states have laws on the books barring local governments from implementing paid leave policies.

While Congress has made COVID vaccines free, our for-profit health care system has made the crisis much worse.

One recent study by the nonpartisan consumer health advocacy group Families USA found that roughly one of every three COVID deaths and 40 percent of infections were attributable to health insurance gaps that would not exist under a single-payer system.

According to a KFF poll from June, the demographic with the lowest percentage of vaccinations is the uninsured. Another KFF poll from May found that a third of unvaccinated Americans were concerned about the out-of-pocket cost of getting vaccinated.

Biden ran on the idea of creating a nationwide public health insurance option, but as president, he has failed to follow through on his pledge, instead opting to funnel tens of billions of dollars to private health insurance companies to subsidize coverage for more people on individual plans.

Ongoing Concerns

While the federal government holds off on sweeping action, COVID continues to mutate and spread. Delta may only be the beginning. The so-called Lambda variant, first identified in Peru, which is thought to be resistant to vaccines, has already been identified in the United States.

In upstate New York, Peter says he and other doctors are frustrated by the lack of a federal response to the pandemic, which he attributes to “the reality of where we are as America.”

Peter tells us that he’s seen doctors retiring rather than go through another wave of COVID. Indeed, the high level of stress faced by ICU doctors during the pandemic has been well documented.

“The frustration is like, we could have stopped it multiple ways, and this is going to happen again — it’s so predictable,” he says. “I think that’s where the irritation with the systemic response is. You’ve seen this coming three or four different times now, and you haven’t changed anything. So, like, at what point do you start trying to do some sort of mandate?”