The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

"Governments [May Be Constitutionally Obligated] to Provide 'Vaccine Passports'"


An interesting short article from Prof. Kevin Cope (Virginia) and my UCLA colleague Prof. Alexander Stremitzer (also at ETH Zurich). An excerpt:

In general, governments can restrict certain fundamental rights only if no less-restrictive alternatives exist for accomplishing the same objectives. In countries like Germany, Austria, and Switzerland, this argument holds generally under the so-called "proportionality test." In the United States, governments may not tread on fundamental rights unless the policy is "the least restrictive means" to achieve a "compelling" government interest…..

Throughout 2020, when temporary bans on certain high-risk, non-essential activities like high-density religious services, political rallies, public dining, theater attendance, and international travel were challenged, they generally (though not always) passed constitutional muster. For good reason, national legal systems tend to defer to officials' policy judgements when it comes to combating public-health crises. And indeed, many of those measures represented the best available means to slow the virus.

As we approach wider vaccine availability, however, that is no longer the case. Now, facilitating mass immunity—and exempting the immunized from restrictions—is not only the least liberty-restricting method for ending the pandemic through herd immunity, but the most effective one….