Are ‘Vaccine Passports’ Legal?
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‘Vaccine Passports’ Can Legally Happen — Here’s Why and How

Gov. DeSantis

Vaccine passports are on the way, and they are legal.

New York State has a pilot program developed by IBM that was recently tested during NBA and NHL games. A press release describes the Empire State’s effort:

Similar to a mobile airline boarding pass, individuals will be able to either print out their pass or store it on their smartphones using the Excelsior Pass’s “Wallet App.” Each pass will have a secure QR code, which venues will scan using a companion app to confirm someone’s COVID health status.

Hawaii has also made strides — and a good deal of noise — about its own vaccine passport system, and officials hope to introduce the Aloha State’s version by May 15.

Meanwhile, White House COVID-19 adviser Andy Slavitt suggested a non-governmental passport would be ideal. On March 29, he said: “The right way is that it should be private, the data should be secure, the access to it should be free, it should be available digitally and in paper, and in multiple languages, and it should be open source.”

Key to understanding the concept is that states and businesses view vaccine passport systems as ways to quickly, safely and efficiently open up their economies — not as mandatory documents U.S. citizens must hold and present in order to comply with the law.

Various international bodies have also stressed that vaccine passports will not and likely cannot be mandatory, but will help make international travel substantially less painful. The upshot is traveling without one would all but certainly be more trouble than it is worth.

The only role likely for the federal government here would be some form of regulatory approach in order to guide the various state and private-enterprise-generated mobile apps toward some sort of a standard. White House Press Secretary Jen Psaki explicitly said the Biden administration will not be creating a “centralized, universal federal vaccinations database” and added that there will be “no federal mandate requiring everyone to obtain a single vaccination credential.”

Frank Bowman is the Floyd R. Gibson Missouri Endowed Professor of Law at University of Missouri Law School. In recent comments to the Blog for Arizona, the constitutional scholar noted that a federal mandate of some sort would also be constitutional—if the federal government were looking to institute such a mandate. But, again, they’re not.

“[T]he federal government has the express constitutional power to regulate interstate commerce,” he noted—and therefore could draw on the same broad and sweeping scope of authority that the Supreme Court has used in the past to justify various grants of federal authority over citizens.

“I think that the national government could prohibit interstate travel (or travel on airplanes, buses, trains, or other modes of interstate travel) without proof of vaccination (perhaps subject to some reasonable exceptions),” Bowman continued. “The question again would be who instituted such limitations – i.e., president by executive order, agency by regulation, or Congress – and whether the mandating authority possessed the constitutional authority to do so. But that such a power resides in the national government, in general, seems reasonably plain to me.”

As for “local restrictions,” Bowman doesn’t think the federal government would or could try to govern there.

Private entities, however, are free to condition entry or use of services on compliance with a vaccine passport regime.

“It certainly depends on the businesses,” attorney and legal analyst Ed Booth recently told Virginia-based ABC affiliate WVEC. “Let’s say in very broad terms, this could be viewed as sort of a ‘no shirt, no shoes, no service’ kind of thing. Private enterprises have a certain amount of freedom to decide how they conduct their business.”

Despite these fairly obvious distinctions between private and public action, and the words coming from numerous officials about said distinctions, conservatives sounded alarms about what was described as a “show us your papers” system.

Early this week, Twitter was abuzz with conservative personalities wondering what the Health Insurance Portability and Accountability Act (HIPAA) has to say about vaccine passports. The answer is: nothing. HIPAA is a law that governs the disclosure of patient information by health care providers and affiliated third parties.

In the context of vaccine passports, references to HIPAA are meaningless because anyone providing such information would be self-disclosing their status.

Fox News’s Tucker Carlson repeated the false HIPAA claims and other associated conspiracy theories on his Monday night broadcast.

Florida Gov. Ron DeSantis (R) stated his opposition to the concept in a speech on Tuesday — and incorrectly stated the law.

“It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply participate in normal society,” DeSantis said.

That’s not true. The private sector is well within its rights to condition entry or use of services upon adherence to public health guidelines. Private businesses cannot discriminate against people based on their being members of various distinct protected classes, such as race, color, religion, creed, national origin, age, physical or mental disability, and sex (including gender identity and sexual orientation), among others.

So, for example, the Civil Rights Act would preclude a private business’s use of a mobile app that identifies someone based on their gender at birth, sexual orientation, race, national origin, veteran status, religion, or color, but it would not preclude a business from using a mobile app that plainly identifies someone’s health status because political beliefs, including political beliefs about COVID and its vaccines, are not protected under anti-discrimination law. Therefore, in strict theory, businesses can discriminate against people based on political beliefs and vaccination status.

“A private entity is entitled to do that, and a private business can have restrictions,” Florida Gulf Coast University Law Professor Pamella Seay told local NBC affiliate WBBH-TV in response to DeSantis’s statements. “If it’s a private venue and a private event, yes; you can make that requirement. But if there’s a public aspect to it no, you cannot.”

DeSantis also promised to sign an executive order barring the use of vaccine passports for government services, buildings and property—but the impact of that order, while exceedingly ballyhooed by some conservatives, would actually be quite limited.

Seay said the order simply wouldn’t apply to private enterprise.

“A private entity is entitled to do that, and a private business can have restrictions,” she noted.

Meanwhile, there are reports of burgeoning fake vaccine card scams. The FBI spelled out the issue clearly: “If You Make or Buy a Fake COVID-19 Vaccination Record Card, You Endanger Yourself and Those Around You, and You Are Breaking the Law.”

A similar alert was sent out last year in response to fake “face mask exempt” cards that had gone viral.

[image via Joe Raedle/Getty Images]

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