Taking a Jab at the Legal Issues for Vaccine Passports
Updated: Jan 6, 2022
Following a practice that originated in Israel and Denmark before spreading more widely through Europe, several big “blue” cities in the USA now require or will soon require anyone entering and patronizing most public accommodations in their jurisdictions to show proof of vaccination against COVID-19. Because many of these regimes allow businesses to accept a smartphone app as proof of vaccination, and these apps are sometimes referred to as passports, this legal regime is often called a “vaccine passport” system. There are subtle differences among vaccine passport regimes in terms of whom they exclude. Some accept a negative COVID test within a certain number of days as a substitute for full vaccination. In Europe, many regimes also accept proof of “natural immunity” as a substitute — say, a positive PCR test from the last 180 days. Some countries, like Israel, now also require a booster to be considered “fully vaccinated.”
New York City; San Francisco; King County, Washington (Seattle); and New Orleans were among the first to implement something like a vaccine passport system in the summer and fall of 2021, in addition to Honolulu (Oahu) and Maui. Los Angeles followed a few months later. More recently, with the arrival of the Omicron variant of COVID and a surge in both testing and positive COVID tests, at least five more jurisdictions announced vaccine passports in quick succession: Philadelphia, Boston, Chicago, Washington, DC; Cook County, Illinois; Newark, NJ; and Highland Park, Ill. Puerto Rico also has a vaccine passport system.
With vaccine passports applicable now in over a dozen US municipalities, including the three largest cities, it is clear that these policies are more than a curiosity. In this post, I look at two questions raised by these policies. First, how are they adopted and what does that say about the separation of powers within municipal governments? Second, how do vaccine passport regimes mesh with some of the pre-existing rules governing public accommodations?
With respect to the manner of adoption, what is astonishing about the fourteen municipal vaccine passport regimes is that only two — Los Angeles’s and Highland Park, Ill.'s — have been adopted by ordinance: i.e., city council approves and mayor signs. Of the other regimes, about half were adopted by mayoral executive order, and the others by order of the health commissioner. No jurisdiction has adopted a vaccine passport system as a board of health rule — that is, through an administrative process that includes notice and comment.
Their manner of adoption raises questions about the democratic and procedural legitimacy of vaccine passports. I have written extensively about city innovation in the realm of public health before. In analyzing local tobacco control and obesity prevention policies, the majority of them — like the smoking bans in bars and restaurants of the aughts — were adopted by city ordinance. A handful were adopted by local administrative rule. In the obesity context, Mayor Michael Bloomberg of New York City famously tried to ban large servings of soda, but he did so through his health department following the regular process for a local administrative rule.
COVID is legally a continuing “emergency” at the federal level, in half the states, and in several local jurisdictions. In these jurisdictions, however, that emergency is now almost two years old. If deciding who can and cannot enter public buildings, restaurants, and museums does not go through the usual lawmaking or administrative process, what will? There are all kinds of wrinkles that could get hashed out through that process: How soon to implement? Which businesses and venues to apply the requirements to? Should there be exemptions to the system? If so, what should they be, and will a substitute mechanism for entry be allowed? In most of these jurisdiction, one person – either a popularly elected mayor or a commissioner she appoints — formally decides these questions. When we talk about the value of local governance, we often invoke its potential not just for innovation but also deliberation. But this model of policy adoption is anti-deliberative: one person decides, with no formal, public process at all.
Moving on to public accommodations, proponents of vaccine passports, even before they were required by governments, defended them as the equivalent of a “no shoes, no shirt, no service” policy. These defenses often reflected a simplistic understanding of public accommodations even under the common law, in which common carriers were traditionally required to serve all comers and could not unreasonably discriminate among guests. Moreover, even for those public accommodations that may not qualify as common carriers in certain states — such as entertainment venues — state common law may nonetheless also require a valid reason to exclude customers, an approach articulated by the New Jersey Supreme Court in a well-known 1982 decision regarding a casino’s exclusion of a card-counting patron.
Moreover, given racial disparities in vaccination rates, there is the question of whether vaccine passport policies violate federal, state, or local anti-discrimination statutes. The Supreme Court has never decided whether Title II of the 1964 Civil Rights Act, which prohibits racial discrimination in public accommodations, prohibits disparate impact, but it is a plausible reading of the statute. Moreover, given the multiplicity of state and local antidiscrimination laws, it is possible that some of them recognize disparate impact as well. If so, a government-mandated policy that disproportionately excludes certain racial and ethnic groups may be legally questionable.
Vaccine passports have spread like wildfire of late, but they raise many questions that demand our further attention.