Is There A Constitutional Obligation To Offer Vaccine Passports?

Some state governors have issued orders against vaccine passports, but these have only limited meaning, such as not requiring state employees to get vaccinated and not requiring proof of vaccination for state business. The Biden administration has said they’ll facilitate but not require vaccine passports.

But do governments have a constitutional obligation to offer vaccine passports? That’s the argument that two law professors make, that government action to protect people from public health risks must use the least restrictive means possible. Bans on non-essential, high risk activities were (sometimes) upheld as necessary given the risks of Covid-19. However restricting the activities of vaccinated individuals who face lower risk of disease and of spreading the virus are no longer justified.

In other words, if government can use less restrictive means to protect the public it must do so. If restricting the liberties of vaccinated people isn’t required, then it must not restrict vaccinated people. In order to impose restrictions, it must provide a way to identify those for whom restrictions aren’t needed.

In general, governments can restrict certain fundamental rights only if no less-restrictive alternatives exist for accomplishing the same objectives. In countries like Germany, Austria, and Switzerland, this argument holds generally under the so-called “proportionality test.” In the United States, governments may not tread on fundamental rights unless the policy is “the least restrictive means” to achieve a “compelling” government interest…..

Throughout 2020, when temporary bans on certain high-risk, non-essential activities like high-density religious services, political rallies, public dining, theater attendance, and international travel were challenged, they generally (though not always) passed constitutional muster. For good reason, national legal systems tend to defer to officials’ policy judgements when it comes to combating public-health crises. And indeed, many of those measures represented the best available means to slow the virus.

As we approach wider vaccine availability, however, that is no longer the case. Now, facilitating mass immunity—and exempting the immunized from restrictions—is not only the least liberty-restricting method for ending the pandemic through herd immunity, but the most effective one….

President Biden’s transportation mask mandate may be beyond the legal authority of the CDC anyway. But when so many Americans are vaccinated, and at low risk of contracting or spreading the virus, imposing restrictions on them is no longer the least restrictive means of protecting public health. I’ve argued that when there’s enough vaccine available for everyone who wants one, mask mandates should be lifted.

I’ll leave the legal question of whether there’s an affirmative duty to offer fewer restrictions when possible to legal scholars, and whether vaccine passports are the best least restrictive mechanism aside (these passports have real challenges).

The point remains that the overarching goal should be to relax restrictions to the greatest extent possible, opening borders as soon as possible, and allowing people to return to their preferred lives as soon as possible. And vaccination remains the best path to accomplishing that.

The nomenclature of ‘vaccine passports’ is in a way unfortunate. It invokes a ‘show your papers’ image, where the government restricts activities without permission. A better description is ‘proof of vaccination’ which is a tool to give confidence that pre-existing restrictions can be relaxed. Requiring this proof, though, should be viewed as an emergency measure that lasts only as long as there’s a demonstrable pandemic.

(HT: Eugene Volokh)

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. Well said. Republicans should be shouting at the top of their lungs for vaccination proof requirements so that life can return to normal. Got your vaccination proof – then you’re good to go.

  2. CDC has no idea what its doing. So as a vaccinated traveler, the CDC says I don’t need to quarantine when I get home BUT I still need to provide a -3 day Covid test?????

  3. @BB
    When you come back, just tell them you’re an illegal alien. No name, no money, no English etc…
    No test necessary!

  4. Mask mandates have to stay because the variants affect children worse. During 2020, children generally became mildly ill or not ill at all. But the UK and S. African variants transmit among young people more easily. Children cannot be vaccinated until age 16. With greater infections among younger people comes the chances for more mutations that the vaccines may not protect against. Cessation of mask wearing is the worst thing to recommend!

  5. The government seems fine with restricting people from getting a US passport because of unpaid child support of a few thousand dollars.

    The government seems fine with restricting people from getting a US passport because the IRS says the citizen owes the IRS c . $50,000 or more.

    The government seems fine with having free US sex offenders’ passports have a sex offender notification in it and even giving potential destination countries a heads-up about a US sex offender coming their way possibly.

    It seems to me that the government doesn’t seem to find much, if any, obligation for the government facilitating the international travel of all free US citizens.

    Modern passports came into use in the US and elsewhere mainly to try to keep undesirable people out of the US or particular foreign zones because of foreign conflicts; that passports facilitated the foreign travel of US citizens was incidental to the government’s desire to keep out persons perceived as undesirable by the state(s).

  6. Get vaccinated, keep wearing masks, staying 6 ft apart, avoid crowds (unless you’re BLM or Antifa then that’s ok). Makes total sense. Honk honk!

  7. I find your last paragraph interesting, Gary, because when I read the position that you and others lay out regarding your troubles with the “passport” terminology, I have the exact opposite reaction.

    To me, “passport” conjures up sentiments of adventure and excitement – when I’m pulling out my passport, it’s for a big international trip. Whereas “proof” to me is evocative of a courtroom (“burden of proof”) or law enforcement (“license and registration”).

    I guess it just goes to show why marketing and branding are tough – consumers are all different!

  8. Lifting restrictions and limits on freedom is not something totalitarians typically do. Temporary measures tend to become permanent. Ask anyone in Michigan.

  9. @GUWonder … so someone can afford to pay for a passport and travel internationally but not pay for their “few thousand” in back child support? I’m confused, but it seems like the government is putting supporting a family above being a dead beat parent who travels around the world. Maybe I’m reasonable, but seems like a rational policy choice to me.

  10. A,

    If we were to accept that when “government can use less restrictive means to protect the public it must do so”, then how is it justified that a civil debt-driven denial of a passport be considered “the least restrictive means to protect the public”?

  11. Billy Bob,

    The Michigan Supreme Court overruled the governor and crippled her ability to respond to the pandemic. And look at the consequences now for Michigan with daily cases of Covid-19.

  12. Simple.

    Want to travel outside the US you’ll have to suck it up and get vaccinated.

    Otherwise you can maybe go to Mexico.

  13. Whats the point of vaccines and vaccine passports? There will be so many vaccines for each of the hundred of variants that will be developing that it will be hard to know what ones we need and dont need. Plus each one will require boosters every year.

    On top of that, there will be endless mask mandates and social distancing to keep up with the soon to be hundreds of strains of covid. Whats the point of a vaccine if it changes nothing and offers little useful protection?

    The whole thing is crazy. Crazy with no exit plan like the war in Afghanistan and Iraq. We will be wearing masks for decades.

  14. When will the requirement of providing a negative COVID-19 test on return to the US for vaccinated people be lifted?

  15. @GUWonder – “The Michigan Supreme Court overruled the governor and crippled her ability to respond to the pandemic.”

    The fact that there’s a pandemic does not exempt the governor from having to follow the law. If she exceeded her authority under the law, the courts have a duty to restrain her.

  16. “I’ve argued that when there’s enough vaccine available for everyone who wants one, mask mandates should be lifted.” Yes you keep making that argument and it was nonsense the first time and it continues to be nonsense. Not everyone can get the vaccine. Kids can’t get the vaccine. Children including babies are dying from covid in Brazil in rather alarming numbers. Children in the US are being infected at increasing rates form the variants. 23% increase in new covid cases in the US over last month and a 10% increase of hospitalizations. Not sure why you keep attacking the mask mandates which are known to work. Just because there are vaccines doesn’t mean everyone is able to get an appointment or that they are suddenly fully vaccinated. We need to get these case numbers down. We are still at higher levels of daily cases than we were last spring, summer or early fall. Really stunning that you can’t comprehend this and yet you keep babbling about the big bad mask mandates.

  17. ” Whats the point of a vaccine if it changes nothing and offers little useful protection?” Umm the pfizer and moderna vaccines offer quite a bit of protection. The only way they will be undermined is if people refuse to do what is necessary and keep getting infected with the virus and providing the virus a chance to mutate.

  18. “The fact that there’s a pandemic does not exempt the governor from having to follow the law. If she exceeded her authority under the law, the courts have a duty to restrain her.“? Sure, but that’s simply not how it works in the real world, especially with these hyper-partisan high courts. Whether it’s the US Supreme Court or the Michigan Supreme Court, what is allowed or denied of the Executive in a time of crisis is one that is heavily based on the perceptions and political biases of the very judges who are being put onto the benches by way of their partisan supporters.

    A perceived violation of the law is not necessarily an actual violation of the law. And a failure of authority to restrain a subject from violation of the law is not the same thing as a subject acting within the law.

  19. 99.9% survival rate. It’s truly amazing how quickly you morons will give up your freedom to feel “safe” from something that poses virtually zero risk to most of the country.

  20. I know others disagree but I’m all for vaccine passports. I feel there needs to be a carrot and stick approach. Get vaccinated and you can go to NBA games in an arena. Don’t get vaccinated and watch on TV. Get vaccinated and you can attend college in person. Don’t get vaccinated and you can take remote classes. Get vaccinated and you can visit Europe (before long). Don’t get vaccinated and you can stay in the U.S. It’s only right that those who are helping solve the COVID problem be free to do the things that are now safe for them, while those who are part of the problem continue with the elements of the COVID lifestyle that are suitable for people who are not safe to be around.

    The only alternative is to simply open everything up. I agree with Gary’s point that continuing to restrict the people who are not the problem is not going to work.

  21. Samuel, what freedoms have I been made to give up that are unique to this pandemic?

    Covid-19 has not been virtually zero risk for most of the country. Even if you’re magically immune against Covid-19, the COVID-19 patients who flooded healthcare facilities across the country equate with less ability to handle you as well if you were to get into a bad car accident.

  22. If Democrats say requiring identification to vote or cross the US border is discriminatory and racist, then creating vaccine passports and requiring them to travel must be the same. After all, minorities are among the least vaccinated and most hesitant to be vaccinated. Following the science, a jackass simply can’t bray out of both sides of its mouth at the same time.

  23. Thank you, Samuel! Unfortunately, the uninformed commentators, who largely frequent this blog, are either unwilling or unable to process that simple number. The fact that they still haven’t figured out this scam, suggests they most likely never will.

  24. AlohaDaveKennedy,

    Republican men under the age of 75 are the most hostile demographic group to getting vaccinated against Covid-19 in the US today. Something like 43% of Republicans in the country are vaccine hesitant at this point.

    Something like 95% of Democrats support getting vaccinated.

    22% of self-identified Independents are vaccine hesitant.

    Given your hatred for ethnic minorities in America, do you now want to blame ethnic minorities for being less likely to be Democrats than Republicans and thus “spreading disease” more by not getting vaccinated?

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