Jacob S. Sherkow is a professor of law and an affiliate of the Carl R. Woese Institute for Genomic Biology at the University of Illinois Urbana-Champaign.
An expert in the legal and ethical implications of advanced biotechnologies, Sherkow spoke with News Bureau business and law editor Phil Ciciora about the legality and policy implications of vaccine passports.
Should the U.S. government institute a vaccine passport system?
The first thing to consider is what exactly we mean by a “passport.” Most people associate the word with an allowance to travel. And to a certain extent, the federal government has power over interstate travel and is allowed to implement laws that regulate interstate travel. It has exercised that right by mandating masks on trains, airplanes and interstate bus lines.
But whether it has the power to say you are only allowed to get on an airplane if you’ve been vaccinated remains to be seen. Usually when it comes to public health issues, states have almost plenary power to require vaccines since the decision in the 1905 U.S. Supreme Court case Jacobson v. Massachusetts.
Does the federal government have that power? It’s unclear, but I would imagine that a vaccine passport would meet intense political resistance if it were to become a federal mandate.
What about vaccine passports for admittance to large public gatherings? Can states unilaterally implement vaccination requirements to go to bars, restaurants, sporting events, movie theaters and the like?
States have the authority to regulate people’s attendance and entry to certain activities if attendance is predicated on a public health concern. There is nothing in the U.S. Constitution nor is there any aspect of case law that says states are forbidden from otherwise mandating that people comply with certain public health restrictions if they’re going to engage in a particular activity that has a public health concern tied to it.
So, for example, the state of Illinois could say if you want to enter a movie theater that seats 50 or more people, you need to be vaccinated or have proof of a negative test. There is nothing in the Illinois Constitution or in the U.S. Constitution that would prohibit the state from doing that.
The on-the-ground implementation about how you go about proving vaccination status or a negative test — that’s obviously one of the trickier questions, as it would likely face significant pushback. But again, states unquestionably have the legal authority to do this sort of thing. States engage in a wide variety of public health activities — from mandating newborn screening, to requiring certain vaccinations for primary school attendance, to demanding that salad bars must have sneeze guards and that employees wash their hands.
Matters of law aside, if people are going to feel safe resuming normal activities, the fact remains that there’s going to need to be some sort of system in place.
Is a vaccine passport system the most efficient way to achieve normalcy?
A lot of this discussion gets tied up in debating whose rights are or aren’t being taken into account. The much better, more productive way of thinking about it is, what’s the alternate solution?
In the U.S. right now, we have two alternatives that are almost diametrically opposed. One is just to reopen everything; you can wear a mask if you want, but we’re not otherwise going to mandate that you do anything. The alternative is a blanket lockdown where restaurants, bars and other social gathering spots are closed as they were in spring 2020.
As we’ve seen, the blanket lockdowns have been very burdensome on workers, businesses and consumers, and many of those burdens weren’t equally distributed in society. Front-line workers were still being put in harm’s way.
So our goal should be finding the least burdensome solution to the problem, and it seems like vaccine passports do that relatively well. Research from Govind Persad of the University of Denver sorted through the alternatives, the costs and benefits, and easily demonstrated that vaccine passports are still substantially superior alternatives to what we’ve otherwise experienced in the pandemic. I fully agree.
Passports of some form therefore seem to be the most appropriate balance between letting life go on for those who have been vaccinated and still being realistic about the ongoing public health crisis in the U.S.
Would a vaccine passport essentially function as a soft vaccination mandate?
For all this talk about mandates, you would think that the government takes the unwilling and straps them down to a gurney and puts a needle in their arm. That’s simply not what a vaccine mandate is. A vaccine mandate is, if you want to do something — say, go to a sporting event —you must get a vaccine. That’s it. It’s your choice whether to go to the sporting event or not. There is no constitutional right to attend a sporting event.
One of the things that we’re seeing is that rather than a state mandating that you must get a vaccine to do some completely optional thing, private businesses and public institutions are starting to step up in place of the government and mandate proof of vaccination. One of the best ways of implementing a vaccine mandate would not be through some statute but in understanding that private businesses can require some proof of vaccination status. This view was recently supported by the U.S. Department of Justice.
Critics cite privacy issues, specifically the privacy burden of sharing personal health information with a third party. But that burden is far, far less than the privacy burden of showing a government-issued ID when you’re buying beer or tobacco.