WHEN THE World Health Organisation declared on November 26th that the Omicron variant of the coronavirus was “of concern”, you could hear the epidemiological equivalent of doors slamming and windows locking around the world. Japan, Morocco and Israel banned all foreigners. Australia delayed its planned reopening. The Netherlands and Denmark demanded that all travellers from southern African countries isolate themselves for several days, then produce negative results from covid tests. Slovenia required that such travellers quarantine for ten days, test or no test.
America’s response, by comparison, was muted. The Biden administration banned travel from eight southern African countries for everyone except citizens and legal residents—a measure that quickly proved as ineffectual as it was unfair, since the variant had already spread elsewhere in the world. The administration also said that from December 6th it would begin requiring international travellers older than one to test negative for covid-19 within 24 hours of departure. And, for both domestic and international air travel, the administration extended the federal mask requirement by two months, to March.
That amounts to a “milquetoast” response, says Lawrence Gostin, a professor of global health law at Georgetown University. “The public already expects reasonable health-and-safety rules when they get on an inter-state or international carrier. They expect to be searched and expect to be masked.”
If Mr Biden wanted to do far more, he has the power to, at least in theory. Travel bans and quarantines help to slow the spread of a new variant like Omicron because they cut the seeding of new outbreaks for as long as the variant is not spreading internally, after which point international travel restrictions become useless. Whether the Biden administration believes that stage has already been reached is not clear. But even if America is past the point where a travel ban would be effective, the administration could still require a strict quarantine after travel, to slow the spread of Omicron or a future variant. It could also require testing days after arrival, to spot any contagion that might develop. England is reintroducing quarantine for incoming travellers, with a PCR test two days after arrival and, for the unvaccinated, an additional test on the eighth day.
The administration could also tighten travel restrictions on Americans. Only foreign travellers must be vaccinated to travel into America. Mr Gostin recommends a vaccination requirement for American citizens and legal residents who want to fly domestically or abroad.
Why might Mr Biden be holding back? Public opinion, at least in the aggregate, is not obviously a constraint. True, the public has soured on the president: only 41% of Americans strongly or somewhat approve of how he is handling his job, according to a weekly opinion poll from The Economist and YouGov, and only 44% strongly or somewhat approve of the way he is handling covid-19. Yet other surveys suggest the public would stomach more aggressive action. In September, according to a Pew Research poll, 62% of American adults felt the public-health restrictions to slow the spread of covid-19 had been worth the cost. In late November, a poll by Morning Consult found that about four in five adults supported travel restrictions on countries where Omicron had been found. (By December 6th, more than 40 countries had reported Omicron cases.) The same poll found that 76% of adults supported increased covid testing and contact tracing.
Mr Biden may instead be wary of the courts, and the danger that he could appear ineffectual. The administration has tried to impose covid-19 vaccine mandates, but they have struggled in the courts, public support notwithstanding (68% of American adults back vaccination requirements).
The administration required that by January 4th all employees of the federal government and of companies with more than 100 workers must be vaccinated or tested regularly. But a ruling by the Fifth Circuit Court of Appeals in New Orleans in mid-November has for now blocked the mandate for private employees. There is a possibility it could be reinstated. After challenges were filed all over the country, a lottery assigned the matter to the Sixth Circuit Court of Appeals in Cincinnati. However that court rules, the mandate may wind up before the Supreme Court, says Walter Olson, a legal scholar at the Cato Institute, a libertarian think-tank.
Mandates requiring full vaccination for health-care workers (in facilities receiving government funding through Medicare or Medicaid) and vaccination or testing for federal contractors are also stalled. Many appeals courts are reading federal authority “exceptionally narrowly, in ways that are surprising to those of us who have been in this field for some time,” says Wendy Parmet, professor of law and public policy at Northeastern University.
But the real constraint may be politics. Even if Mr Biden eventually prevails in the courts, Republican politicians could further delay or sabotage his mitigation strategies—and use them as a wedge issue to mobilise their supporters for the coming midterm elections. Over the past few weeks, four states (Florida, Iowa, Kansas and Tennessee) modified their eligibility for unemployment insurance to include people fired for flouting vaccine requirements. Unemployment insurance is usually reserved for those who have been fired through no fault of their own.
Shortly after Mr Biden said on November 29th that the Omicron variant was cause for concern, Republican politicians began discussing ways to subvert new and existing anti-virus regulations. J.D. Vance, a Republican Senate candidate in Ohio, encouraged politicians to shut down the government until Mr Biden backs off vaccine mandates. Others discussed ending mask mandates in schools and elsewhere.
Nearly every attempt the Biden administration has made to mitigate the coronavirus has been undermined. “The US is virtually ungovernable,” says Mr Gostin. Ms Parmet agrees, pointing to the rulings against vaccine mandates for health-care workers. For decades, she notes, the federal government has required much from health workers: to wear gloves, to get screened for tuberculosis and to take other steps to protect public health. With covid, the federal government has suddenly become hobbled. “The courts are adding to the ungovernability. I fear they have become players in the culture war,” says Ms Parmet. “And to do that during a public-health crisis…It’s bananas!” Mr Biden probably feels the same way.
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