As millions of Americans continue to get vaccinated against COVID-19, some Republican governors have issued orders against the use of “vaccine passports” in their states.
What’s a “vaccine passport”?
The term “vaccine passport” is an umbrella phrase denoting the idea of standardized proof that a person has been vaccinated. Individuals currently receive paper vaccination cards issued by the CDC at vaccination sites, but many feel there would be a significant benefit to creating an electronic system whereby individuals can prove their vaccination status via cell phone app.
Do these vaccine passport apps exist yet?
Yes, but they aren’t widely available. New York State has instituted a pilot program called Excelsior Pass. This technology developed by IBM promises a secure way to confirm an individual’s vaccination or a recent negative COVID-19 test, and the system was used at some recent sporting events. New York isn’t mandating Excelsior Pass, but it making it available via the state website. Hawaii has also announced that it expects a similar program to be running by mid-May.
Are any governmental entities requiring individuals to use a vaccine passport?
No. Use of these technologies is entirely voluntary.
Is it legal for a private business to require patrons to use vaccine passports?
Yes. Although there are some limitations, private businesses are generally permitted to serve patrons as they please. The primary qualification on that freedom comes in the form of “public accommodation laws” — statutes (usually state laws) that prohibit businesses from discriminating on the basis of race, gender, sexual orientation, race, national origin, veteran status, or religion. Under federal law, those categories are referred to as “protected classes.”
By contrast, attributes like employment status, political beliefs, or clothing worn are not protected characteristics; accordingly, businesses may legally discriminate on those bases. [Now’s a good time to point out that “discriminate” means “treating different groups differently.” Although the term is often used as a shorthand to describe improper or illegal discrimination, it has a broader meaning that simply amounts to “differentiating.”] That’s why it’s legal for a private business to require patrons to abide by a dress code or mask mandate.
In fact, private businesses have fought major court battles to protect their right to discriminate. [See, for example, the Supreme Court’s ruling in Masterpiece Cakeshop.]
Would it be legal for federal or state governments to require vaccine passports?
If federal or state governments began to require proof of vaccination, there would be predictable legal drama about it. The political spectacle of challenging the requirements in court would be irresistible in much the same way challenges to other COVID-19 restrictions were (mask mandates, indoor capacity limits, etc.). Most legal experts agree, however, that both federal and state governments would have the right to mandate proof of vaccination in at least some contexts. For example, the federal government has broad authority over interstate travel, and would almost certainly have the right to require a vaccination passport to move from state to state.
That said, any discussion of the legality of a government mandate is premature. The current use of vaccine passports has only been suggested for voluntary use by private businesses.
What are Republican governors doing?
Republican Governors Greg Abbott of Texas, Ron DeSantis of Florida, and Brad Little of Idaho have each issued executive orders banning vaccine passports. They argue that a requirement to prove vaccination infringes on individual freedom.
The Texas order prohibits any Texas governmental entity from mandating a vaccine passport. The Florida executive order goes a step farther, declaring that vaccine passports “reduce individual freedom and will harm patient privacy.” The order prohibits any government entity from issuing vaccine passports, as well as any private business from requiring proof of vaccination from their patrons. Governor Little’s order in Idaho specifically references New York’s vaccine passport program, warning that it will “facilitate the exclusion of Americans from receiving services and fully participating in public life,” and restricting any Idaho municipalities from requiring proof of vaccination. Utah’s Republican governor, Spencer Cox, signed a bill into law that prohibits government entities from requiring proof of vaccination.
What’s likely to happen?
Private businesses will probably bring lawsuits challenging any regulation limiting the ability of private businesses to require proof of vaccination. In particular, many Florida businesses that depend on tourism (such as theme parks and cruise companies) may see these limitations as an unfair restriction on their right to operate their businesses safely. The battle will center on the legalities of “individual freedom,” and pit the rights of consumers against the rights of businesses owners. Given that there is longstanding recognition of the right for private businesses to set their own terms of service and no such corresponding right for individuals to patronize those businesses, the businesses will likely prevail.
A particularly dramatic example of the conflict between Republicans’ interpretation of freedom and that of businesses can be seen in the cruise industry. Currently, the cruise industry is at a total standstill in accordance with the CDC’s “No Sail Order,” which prohibited the sailing of any cruise ships departing from U.S. ports.
Norwegian cruise lines issued a series of statements advocating for a reopening of the cruise industry. That advocacy, though, was based in large part on Norwegian’s strict plan to keep patrons safe.
“We believe that through a combination of 100% mandatory vaccinations for guests and crew and science-backed public health measures as developed by the Healthy Sail Panel… we can create a safe, ‘bubble-like’ environment for guests and crew,” wrote Frank Del Rio, president and CEO of Norwegian Cruise Line Holdings in a letter to the CDC.
Florida’s ban on the use of vaccine passports could significantly thwart ‘s plans to create the mandatory vaccination bubble it touted to its customers.
[image via Joe Raedle/Getty Images]
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