Governments Are Constitutionally Permitted to Provide “Vaccine Passports”—Some May Also Be Constitutionally Obligated to Do So
In early April, as daily U.S. vaccine doses reached 4 million, Florida Governor Ron DeSantis banned private businesses from requiring proof of COVID-19 vaccination—so-called vaccine passports—as a condition of service. DeSantis echoed the concerns of some other conservative pundits and policymakers, arguing that the passports would “reduce individual freedom” and “create two classes of citizens.” In March, Ohio Republican U.S. Senate candidate Josh Mandel tweeted that “Vaccine Passports trample on human liberty.” These arguments hint that vaccine passports would offend fundamental freedoms, and possibly even constitutional ones, if implemented with the government’s blessing. Some groups, including a Canadian antivaccination organization, have made this argument explicitly.
These views notwithstanding, government-provided vaccine passports would most certainly pass muster under many national legal systems, including under Israeli Basic law, British law, and U.S. constitutional law. But more than that, we believe that, assuming governments do not lift COVID restrictions for everybody, exempting vaccinated people from COVID-related restrictions might even be required under some constitutional systems. Given the policy choice between (1) a vaccine passport program—which would soon allow vaccinated people to, for example, travel, attend political events, and congregate for religious services freely—and (2) ongoing, blanket government bans on those activities—which allow no one to do those things—the former is less constitutionally problematic.