The Constitution Requires the U.S. to Offer Vaccine Passports
"The concept of vaccine passports has opened a new fissure in the COVID culture wars. Many liberals and libertarians—and a slim majority of Americans—support them, while many conservatives call them unjust, even unconstitutional discrimination. On this last point, however, U.S. constitutional law is clear: The government can limit certain rights and privileges to the vaccinated, especially during a pandemic. So the more pertinent question now isn’t whether vaccine passports are allowed; it’s whether they are required—whether the Constitution entitles vaccinated people to receive exemptions from many COVID restrictions. We believe it does.
The term vaccine passport essentially has two different meanings. The first is simply an electronic or paper record showing the holder’s vaccination status, like Canada’s “CANImmunize” credential, the World Health Organization’s yellow fever vaccination “Yellow Card,” or a COVID vaccine card.
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More controversially, vaccine passport has come to mean a policy in which the government and businesses exempt vaccinated people from certain restrictions. Beneficiaries are allowed to travel, avoid quarantine, attend sporting/political/arts events, eat in restaurants, and/or patronize other businesses, with few or no restrictions. Those without this credential may face ongoing significant restrictions until a community reaches herd immunity. Many countries like Israel and Denmark already have such a system in place, and for U.S residents, they’re already being implemented for university enrollment and outgoing international travel.
Here’s why governments may be constitutionally required to provide a vaccine passport program for people under continuing restrictions. Under the U.S. Constitution, the government may not tread on fundamental rights unless the policy is “the least restrictive means” to achieve a “compelling” government interest. Even some rights considered nonfundamental may not be infringed without a rational or non-arbitrary reason. Before vaccines, blanket lockdowns, quarantines, and bans on things like travel, public gatherings, and church attendance were a necessary measure to slow the pandemic. The various legal challenges to these measures mostly failed—rightly, in our view. But now, a small but growing set of the population is fully vaccinated, with high efficacy for preventing transmission and success rates at preventing serious illnessclose to 99 percent or higher.
Facilitating mass immunity—and exempting the immunized from restrictions—is now both the least liberty-restrictive method for ending the pandemic through herd immunity and the most effective one. Imagine a fully vaccinated person whose livelihood is in jeopardy from ongoing travel or business restrictions. She might go to court and argue: “I present little or no danger to the public. So restricting my freedoms and preventing me from contributing to society and the economy isn’t rational, let alone the least restrictive means of protecting the public. Since you’re not lifting restrictions for everyone, the Constitution requires that I be exempt.”
This argument alone should be enough to justify mandating that passports be made available where COVID restrictions are still in place. But public health experts tell us that there are others. Throughout the world, vaccine hesitancy is a barrier to achieving herd immunity. Over a quarter of Americans—and a majority in some areas—say they will not get vaccinated. By offering an additional “carrot” of expanded privileges and freedoms, vaccine passports would nudge at least some to overcome their hesitancy, protecting many additional people from the virus.
Opponents of vaccine passports—such as American conservatives and progressives in Europe and Israel—cite equity or fairness: It’s inappropriate or even unconstitutional, they say, to give some people but not others certain rights. Many conservatives say that the passports coerce people into accepting a vaccine in exchange for recovering their basic liberties. Some argue that governments will use the passports to justify prolonging restrictions. Progressives, on the other hand, are focused on the fact that not everyone has access to the vaccine yet, and that some groups may have more access than others. The WHO has also cautioned against vaccine passports, noting it’s not “certain” that vaccinated people cannot transmit the virus.
These arguments are intuitively appealing, but not ultimately persuasive. Under U.S. law, when the government treats people differently based on whether or not they’ve taken some action, it usually triggers only the lowest level of constitutional scrutiny. In that case, the government need only provide a rational reason to justify the distinction. In fact, U.S. courts have repeatedly upheld schools’ and state requirements that exclude or penalize those who don’t receive certain vaccinations. The justification for vaccine passports will weaken as we reach herd immunity, when even the unvaccinated will pose less of a threat to themselves or others. But for now, there’s reason to expect that a vaccine passport program would hasten herd immunity and the end of the pandemic, and thus the easing of liberty restrictions for everyone, vaccinated and unvaccinated.
As to requiring certainty about the impossibility of transmission, there is growing evidence that the vaccinated present extremely little risk of transmission. Regardless, our public health policies in other domains rarely demand zero risk, as the things that fulfill our lives and sustain our livelihoods are rarely 100 percent safe. We allow people with heart conditions to drive, although they sometimes suffer cardiac arrest and hurt others. And we allow people suffering from contagious seasonal flu to freely travel in public, although on average about 35,000 Americans die of influenza each year.
The vaccine is free and already widely available in the United States. In many places where it is less available, the groups that still have the least access (younger and healthier people) are also least vulnerable to the virus. As for those who cannot get a vaccine for medical, transportation access, or other reasons, some governments like the European Union are reportedly considering providing passports to those who recently and regularly test negative, or to those who can show sufficient antibodies after having recovered from the illness. Sadly, many countries in the Global South like India are likely to have little vaccine access for some time. The inequitable global distribution of vaccine access is troubling; rich countries can do more to help, like sending equipment and opening vaccine patents. But not introducing vaccine passports on fairness grounds would do nothing to promote global access—if anything, it might do the opposite by deepening the pandemic’s economic impact.
Constitutional choices sometimes involve difficult trade-offs between liberty and safety. This is not one of those times. Vaccine passports would promote both liberty and safety, while responsibly hastening our return to (near) normalcy."
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
U.S. Supreme CourtJacobson v. Massachusetts, 197 U.S. 11 (1905)
Jacobson v. Massachusetts
Argued December 6, 1904
Decided February 20, 1905
197 U.S. 11
The United States does not derive any of its substantive powers from the Preamble of the Constitution. It cannot exert any power to secure the declared objects of the Constitution unless, apart from the Preamble, such power be found in, or can properly be implied from, some express delegation in the instrument.
While the spirit of the Constitution is to be respected not less than its letter, the spirit is to be collected chiefly from its words.
While the exclusion of evidence in the state court in a case involving the constitutionality of a state statute may not strictly present a Federal question, this court may consider the rejection of such evidence upon the ground of incompetency or immateriality under the statute as showing its scope and meaning in the opinion of the state court.
The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety.
While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.
The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.
It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine
in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.
There being obvious reasons for such exception, the fact that children, under certain circumstances, are excepted from the operation of the law does not deny the equal protection of the laws to adults if the statute is applicable equally to all adults in like condition.
The highest court of Massachusetts not having held that the compulsory vaccination law of that State establishes the absolute rule that an adult must be vaccinated even if he is not a fit subject at the time or that vaccination would seriously injure his health or cause his death, this court holds that, as to an adult residing in the community, and a fit subject of vaccination, the statute is not invalid as in derogation of any of the rights of such person under the Fourteenth Amendment.
This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination.
The Revised Laws of that Commonwealth, c. 75, § 137, provide that
"the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars."
An exception is made in favor of "children who present a certificate, signed by a registered physician that they are unfit subjects for vaccination." § 139.
Proceeding under the above statutes, the Board of Health of the city of Cambridge, Massachusetts, on the twenty-seventh day of February, 1902, adopted the following regulation:
"Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, thathttps://supreme.justia.com/cases/federal/us/197/11/