Arizona's Republican Gov. Doug Ducey has ordered local governments to back off of any plans that would force citizens to carry around "vaccination passports," instead leaving it to local businesses to determine their own best practices.
On Monday, Ducey released an executive order stating that "no state agency, county, city, town or other political subdivision of this state" shall adopt any regulations or pass any ordinances that require an individual to provide proof of COVID-19 vaccination in order to enter a business or facility or as a condition of receiving service.
The order only forbids governments within the state from demanding vaccine passports and does not forbid private businesses from setting their own guidelines. It specifically makes it clear that health care institutions and schools can still demand vaccination records in compliance with existing state law. This is by design. In explaining the order, Ducey made it clear he wants private businesses to decide for themselves.
"The residents of our state should not be required by the government to share their private medical information," Ducey said in a prepared statement. "While we strongly recommend all Arizonans get the COVID-19 vaccine, it's not mandated in our state—and it never will be. Vaccination is up to each individual, not the government."
This is the exact right needle to thread. Governments shouldn't be forcing businesses to intrude on a customer's privacy in order to provide goods and services. At the same time, each business should be empowered to decide the level of risk and exposure it wants to take on. And then, ultimately, customers will make their own decisions about whether they'll visit certain shops on the basis of whichever policies have been put into place. To twist around a comparison, bakers shouldn't be forced to bake wedding cakes for people who refuse to be vaccinated. Bakers also shouldn't be forced to deny wedding cakes to these people.
Ducey's order does raise a question about his executive authority: Does the governor have the power to tell local cities which ordinances they're allowed to pass? Wouldn't that fall under the power of state lawmakers?
In his executive order, Ducey is claiming this authority under the emergency powers granted to him due to the pandemic. It gives his office wide latitude and, while cities and counties may establish their own emergency rules and regulations, they "shall not be inconsistent with orders, rules and regulations promulgated by the governor."
But we're increasingly seeing state lawmakers worry about the amount of power governors seize for themselves by declaring emergencies, and Arizona is no different. Some lawmakers in Arizona are attempting to terminate Ducey's emergency orders and pass a law that would give them the power to overrule his mandates with a majority vote.