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)