Public Health

Our New Article on "Vaccine Passports as a Constitutional Right"

I coauthored it with Kevin Cope (University of Virginia) and Alex Stremitzer (UCLA/ETH Zurich)

|

My new article, "Vaccine Passports as a Constitutional Right," (coauthored with Kevin Cope and Alex Stremitzer) is now available on SSRN. It is also currently under submission to law reviews.

Here is the abstract:

Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but have recently become politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be. The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions: (1) domestic travel and movement, under Fourteenth Amendment substantive due process; (2) international travel; (3) uncompensated shutdowns, under the Fifth Amendment takings clause; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the First Amendment freedom of assembly and free exercise clauses. Contrary to some social-justice and liberty-based arguments, this conclusion is also consistent with longstanding liberal principles of fair allocation of costs, equity, liberty, and non-discrimination.

The article addresses a wide range of possible limitations and objections, including explaining why our argument holds true even with respect to the more contagious Delta variant of Covid-19. It is also worth noting that my coauthors and I agree on the issues addressed here, even though we  differ greatly from each other on both political ideology and constitutional theory (Kevin Cope, for example, is well to the left of me).

This draft will likely be revised in various ways prior to publication, so we welcome suggestions.

NEXT: The Academic Freedom Podcast with Jonathan Rauch

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I can’t wait to see the crazies weigh in.

    1. I see they already have.

      Damn

      1. Aren’t you clever. I missed comment about the jerks who would arrive with only a snark up their sleeve

        1. This coming from someone who posted, unironicallly, “I can’t wait to see the crazies weigh in.”

          I imagine you as one of those people constantly refreshing the page waiting for someone to post something you can dunk on with a witty retort you heard from some no-life Twitter blue checkmark.

          I’ve done my shitting on you. Have fun with your spittle-flecked rage 🙂

          1. What a jerk, bye Chin

        2. Same answer.

      2. Thanks for self identifying as another effhead to mute.
        Bye.

    2. Paperz, pleaz.

      No COVID Gestapo checkpoints in the USA.

      1. Hi, Ilya. Did you forget something? How about vaccine passports for illegales without legal passports? Where is that mentioned in your dumbass article?

        1. Hi, Ilya. Did you forget something? 34 million people got COVID and are fully immunized. Can they get a vaccine passport in your world of the COVID Gestapo? Paperz, pleaz.

          1. Hi, Ilya. Did you forget something? Thousands of deaths after the vaccine. the mRNA make the ribosomes produce the spike protein. That’s the thing that unleashed the cytokine storm.

            Go to the bottom, where the CDC is hiding this information.

            https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html

            1. Hi, Ilya. All that being said, I support the COVID vaccine, and have even had a third shot as a booster, and supported it for my family over age 12.

              I even support carrying a card of proof of vaccination. I even support using it as a condition of some activity. An example of that condition is employment as a caregiver in a nursing home or for an elderly person. It is then relevant.

              What I oppose is the Covid Gestapo going on in Democrat jurisdictions. Their quackery has caused surges in cases and in deaths from COVID, not just with COVID.

              1. Anti-vaxxers can review the lectures of Dr. Peter A McCullough for a rational sounding argument against vaccines and in favor of dismissed treatments. I disagree with him, but totally oppose excluding him from the debate, and suing him to harass him. The plaintiff who sued him for using their name in a list of true prior employments should pay all costs and punitive damages.

    3. Don is here so thats 1.

  2. “we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be. ”

    Ilya,
    it would have been helpful if you indicated what such restrictions are and what is their functional dependence on the efficacy and efficiency of the vaccines.

    1. He listed the restrictions (vaccinated people might be entitled to exemptions from six sets of restrictions:). In the body of the article, he says

      As discussed earlier, vaccinated individuals have a 3-8 times lower chance of being infected by COVID-19 – including the more contagious Delta variant – and therefore a far lower chance of spreading it to others. If this risk is nonetheless enough to overcome heightened scrutiny, it would justify a near-total gutting of the right to travel, since restrictions could also be imposed to prevent the spread of the flu, and other “normal” diseases that pose comparable dangers to that created by vaccinated individuals.

      1. Don’t know if that is accurate, I don’t think you stop being infected when your vaccine is a treatment for the disease when it is acquired by some mean, This vaccine seems to attack the disease after infection.

        1. No, the vaccines also protect against infection in the first place, although apparently not as well or for as long as they protect against severe disease and death. (It’s not entirely clear how much of that difference is an actual change in immune response versus differences in viral strains.)

          I think the general form of the argument is that for anything subject to a higher standard of review than rational-basis review, the government needs to have good justification for treating vaccinated and unvaccinated people the same. I don’t think courts would agree in general, in part because of the uncertainty and variability of vaccines protection, in part because not everyone can get vaccinated (so it seems like a potential improper form of discrimination or EPC violation), and in part due to deference principles about not litigating perfect as the enemy of good.

          1. But Ilya’s argument here is that if you’ve got a rational basis for treating people vaccinated against Covid as a risk, when they’re no more of a threat than people who aren’t vaccinated against more “ordinary” diseases, then you’d have to say that these anti-covid measures could be legally justified against basically ANY disease, regardless of severity.

            Which is my reasoning for opposing these measures. I don’t think we’re ever going to be rid of them, if we let them get ‘tenure’.

            1. Under rational-basis review, I don’t see how the government loses. COVID-19 is quantitatively different than most diseases, and courts will defer to the executive — particularly under rational-basis review. There is a slippery slope, but I think courts will say the political rather than judicial process should work out the most appropriate rules. Courts will review individual regulations and strike down some.

              The examples that Somin cites are, as I understand them, subject to intermediate or strict scrutiny of government restrictions. That’s why the government might lose those cases, but I don’t see courts jumping from those individual cases to declaring a constitutional right to vaccine passports (that exempt the vaccinated from swaths of regulation).

              1. The federal government basically always wins “rational basis” review cases, unless the judge is hostile. The bar isn’t just low, it’s painted on the floor.

          2. Michael,
            “the vaccines also protect against infection in the first place”
            That is unclear. One can be infected by SARS-CoV-2 without developing COVID-2.
            As you note the amount of protecting against developing COVID-19 and the seriousness of the disease can vary with time and with the the variant of exposure.
            The fact that the CDC will note recognize any measure of immunity due to recovery from previous infection is a distinct flaw in the “pass sanitaire.”

  3. I see you use the phrase, “the vaccinated or otherwise immune.” In other places, you just say “vaccinated”.

    How does your analysis view this distinction? Because I’ve noticed that the US is tending to treat these biologically interchangeable states differently, treating having obtained immunity any way besides vaccination as meaningless in most contexts.

    1. I have immunity through prayer.

      1. Prayer requires humility. I’d say you don’t.

        1. With all humility, I encourage you to always vote by prayer.

      2. Not true Mr. Troll. God may very well respond in the negative, and your situation worse off than if you had never prayed at all.

    2. Brett,
      As you well know, CDC will not recognized any way of having immunity but vaccination, in complete disreagrd of the experimental evidence

      1. Actually, they’re recognizing prior infection for international travelers flying to the US. Not for anything else I’m aware of.

        1. I suspect they made this exception to avoid pissing off other countries by imposing such an arbitrary distinction on their citizens, while they lack such concerns about roughly 40 million Americans who already are immune by virtue of having had Covid, but get treated as though they weren’t.

          1. I agree, since most other countries recognize prior infection as valid for immunity (for example, for France’s Pass Sanitaire, you have to show proof of vaccination or prior infection/recovery)

          2. That is a reasonable guess.
            But the fact that a positive serology test is insufficient is hardly scientific or fair.

  4. Sorry man but when you used “equity” you lost me…liberty demands inequity..this isn’t the old country..not Russia run by bolsheviks..man what is it with “libertarians” at Reason…

    1. It looks to me that Ilya was using that as a way to appeal to liberals to support his thesis.

  5. Government does not provide rights. They can only take them away by force.

    1. Yes, and that is what is happening here. Our individual rights and liberties are being stripped away by state and federal government, one by one, in an incremental fashion.

    2. Really, you might want to discuss this idea with black Americans who were denied the right to vote, eat at restaurants, and use public bathrooms. It is true that state governments took away those rights but it was the Federal government that gave them back.

      1. Probably what buckleup meant is that in our system of government all rights and powers belong to the people, we grant limited powers–and give away some rights–to the government. But anything not so granted cannot be “provided” to us by the government since it always belonged to us.
        As to your example of black americans. The government only reversed an illegitimate use of power by the state governments. [I supposed a different way of looking at it could be that black americans had no power, and were not the people granting power to the state, and then (through a lengthy process) the government made them equal citizens with full retained rights. But that’s a whole nother issue.]

      2. Wow you missed what the CRA did and didn’t do…you need to read it again.

        Your mixing public and private which to some degree is the main problem with how the CRA was written (on purpose no doubt).

        Govt can’t discriminate or pass laws forcing people to…and that should have been it..the rest was a method of govt force to obtain social outcomes regardless if the govt discriminated (and in fact it had to to achieve the outcomes).

  6. Who knew that Poe’s Law applied to law review articles? Dear god.

  7. First time ever.
    I agree with Ilya on a contentious issue.

  8. Your analysis is based on a core assumption “those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness.”

    This is only true for vaccines that provide sterilizing immunity. Most of the more modern vaccines (including flu and COVID) do not seem to do this.

    This would seem to greatly limit the relevance of the piece.

    1. Somebody gets it. Look for the definition of “fully vaccinated” to change over time.

      1. On shot, or two shots; then add a booster to the two shot but not the one shot. (maybe boosters forever)
        Then actually approve one vaccine, two years faster then established safety protocols allow.
        Then expect us to actually give a damn about the CDC instead of discussion with a doctor who actually knows our individual medical history.

    2. Look, “sterilizing immunity” has become the new standard for admitting a vaccine works, because it provides a perpetual excuse for continued restrictions and boosters. Because sterilizing immunity doesn’t LAST!

      Sterilizing immunity is the immune equivalent of Defcon 5, the state your immune system is in immediately after fighting off an infection or responding to a vaccine. It’s not a normal state for the immune system!

      Vaccines don’t work by virtue of sterilizing immunity. They work by virtue of reducing the reproduction rate of a pathogen below 1, so that it dies out instead of spreading. They do that in the population, and in the body.

      Minor infections in ‘immune’ people are a normal part of immune response. They’re not proof you’ve lost your immunity.

      1. Here’s a fairly rational discussion of the matter.

        Sterilizing immunity isn’t necessary for vaccines to be useful. Most vaccines never do provide it.

        1. Thanks for the link

        2. I agree with your assessment of sterilizing immunity … however, in this case, there is no evidence that the vaccines make a person pose “little danger of transmitting the disease”, substantially more so than an average unvaccinated person (who, you may recall, already has a pretty low probability of transmitting the disease).

  9. Alas, as a practical matter, the Somin’s proposal guts emergency public health measures. The aim of public health measures during a pandemic emergency cannot be to make policy in accord with science, nor to make policy in accord with maximization of individual rights. The aim must be to make policy in accord with suppressing contagion.

    Experience with Covid-19 has shown that scientifically irrational policies may be necessary to suppress contagion, because scientifically rational ones can and will be gamed by cynical opponents and irresponsible resisters. Absent any practical way to determine reliably whether a tendered vaccine passport—or a mere claim of vaccination, or a claim of previous natural infection—is valid, the aim of suppressing contagion can be served adequately only by a presumption that appropriate social distancing and masking measures must be followed by everyone, vaccinated or not, until a pandemic has been sufficiently suppressed to return society to its customary practices.

    It is dismaying to have to live this way, and to govern this way. Liars, opportunists, and cynics must bear the blame. The saving benefit is that compulsion to treat everyone like will always be more effective, and end pandemic disruption quicker, and with less cost in lives and money, than any effort to dole out extra helpings of liberty case by case, whether on the basis of science, constitutional law, or any other scheme of analysis.

    Of course I have learned that the aforementioned liars, opportunists, and cynics will be quick to blast such plain truth as tyrannical. Happenstance enables their complainer’s privilege. The current pandemic, horrific though it has been among some demographics, has not attacked everyone alike. I will listen to charges of tyranny only from those who frame their objections in the context of a much more severe pandemic, one with an inherent likelihood of killing a notable percentage of everyone.

    1. I agree with most of what you wrote. I think it is still too early to say for sure on “what works best”.

      Selective easement of restrictions (either directly against individuals, or indirectly thru regulation of businesses) might incentivize vaccination to the point where this coronavirus abates. Or it might not. Worth trying I think.

      Either way, unless Congress acts, states are going to be the ones making these policies. And maybe that is for the best. Let the states try one strategy or another, and later on when our heads are clear we can see which worked better.

      This pandemic was always going to be one for policy experimentation. First bona fide pandemic in a hundred years.

      1. LL “First bona fide pandemic in a hundred years.”

        Wikipedia: “The Hong Kong flu, also known as the 1968 flu pandemic, was a flu pandemic whose outbreak in 1968 and 1969 killed between one and four million people globally.[1][2][3][4][5] It is among the deadliest pandemics in history, ”

        Wow. Study history much? And despite all that, hardly anyone really noticed because there was no way to benefit politically back then. I asked my parents who had a family then (me and my sister) and they didn’t even remember that there was a pandemic.

        1. Sure, can include that one if you like.

          I quibble with your 1-4 million estimate tho, that is on the higher end for the ones I have seen. Hard to get good data from back then, as diagnosis in 68would not be considered rigorous by today’s standards.

          Moreover, while those 68 flu cases and deaths did affect Europe and the US, the numbers in the US were comparatively smaller to what we’re seeing for this coronavirus (also smaller compared to the 1918/9 flu. I think fewer than 100k people died from the 68 flu in the US, tho I may be misremembering. As a result it had much less of an effect on public life in the US than either the 1918/19 flu or this coronavirus.

          But you are ultimately right. A lot of people in the world suffered died in 68 from that flu. Important to remember that.

          1. Apologies for the dangling parenthetical mark. They irk me so.

          2. Good that someone brought up the comparison with the 1918 spanish flu. A lot can be learned by understanding the 1918 Spanish Flu. Covid is following a very similar path of the Spanish flu (1st, 2nd, 3rd, 4th wave, variants, etc). However, there are two very notable exceptions

            1) the spanish flu killed a high percentage of young and otherwise healthy individuals in comparison to other flu epidemics and covid. This indicates that covid inherently less deadly than other new flu virus and is only more deadly because it is “new” and there is very little cross immunity from prior flu viruses- thus deadliness stems from the “newness ” of the virus.
            2) Deaths from all flu viruses skew heavily to age, covid being a prime example where the vast majority of deaths are the elderly (or otherwise unhealthy). The spanish flu Killed a very low percentage of individuals over age 55 (at least in comparison to other flu viruses) The reason for the relatively low death rate for those over age 55 was that there was a flu epidemic in 1873-1875 which gave cross immunity to those over age 55.

            1. I will add that the spanish flu / variants is still with us. Should we require a vaccine for the Spanish flu? Of course not, because we have achieved immunity. Based on the trajectory, we will have achieved effective herd immunity within the next 9-18 months.

      2. Why don’t you count HIV/AIDS as a bona fide pandemic? It has killed a lot more people than COVID-19 has. The 2009 swine flu is generally regarded as a true epidemic, and it infected a huge number of people even though its death toll is not so high. (Some of the side effects contributed to current concerns; see Pandemrix and narcolepsy.)

        1. I think your comment highlights out the futility of drawing hard distinctions between outbreaks, epidemics and pandemics, etc.

          1. No, it just highlights that your idea of a bona fide pandemic is much narrower than the general scientific definition of pandemic.

            An outbreak is small in scale and typically localized within a city or town. An epidemic is a broader, but regional or national, collection of infections by the same disease causing agent. A pandemic is when the infections span the globe, or at least large parts of multiple continents.

            For example, the 2013-2016 Ebola infections are typically considered a pandemic because infections occurred in at least three continents. A huge majority of infections only occurred in a few countries, and there were “only” eleven or twelve thousand deaths across those years, but those metrics are not the defining characteristic of “pandemic”.

            1. Friend, it was a throwaway comment which I have now thrown away. I don’t think there is a consensus on the application of outbreak, epidemic and pandemic. If one must constrain themselves to those three terms, there will always be reasonable disagreement and subjectivity.

              If we can’t agree that this coronavirus has wrought the greatest per capita toll on human life and the human economy since the 1918/19 flu, then we will not agree on much.

              My main point is that the scale and nature of this pandemic is unlike any we have seen in a long time. So it is therefore unsurprising that the political, legal, regulatory etc response to it has been a hot mess.

              1. “If we can’t agree that this coronavirus has wrought the greatest per capita toll on human life and the human economy since the 1918/19 flu, then we will not agree on much.”

                Coronavirus wrought a great deal of damage in terms of human life, but the damage to the human economy was from the response, not the virus. The shutdowns, primarily.

                The fact is, the death and morbidity rates for Covid are low enough that its economic impact, if it had simply been ignored, (Which I’m not advocating!) would have been minimal. Some diseases cause enough death or morbidity to seriously impact the economy. Covid was not one of them.

                You can’t do proper cost/benefit analysis on a response to a problem if you attribute the costs of your response to the problem. If you do that, every response looks good, because the more expensive your response, the more expensive you see the problem being.

                1. Coronavirus wrought a great deal of damage in terms of human life, but the damage to the human economy was from the response, not the virus. The shutdowns, primarily.

                  The fact is, the death and morbidity rates for Covid are low enough that its economic impact, if it had simply been ignored, (Which I’m not advocating!) would have been minimal. Some diseases cause enough death or morbidity to seriously impact the economy. Covid was not one of them.

                  What a load of crap. Absent government bullying, you think folks in New York would have driven past rows of refrigerator trucks full of corpses to get to the movies? Brett, maybe you have been at a disadvantage, and poorly situated to form first-hand impressions about what happened during this pandemic.

        2. HIV/AIDS didn’t get treated as a bona fide pandemic, because it was missing the “pan” part of pandemic. Most people faced a vanishingly low chance of catching it, especially once they started testing blood donations.

          The only people at high risk for it in the US were IV drug abusers and homosexual men. It was NOT an easy disease to transmit, otherwise.

    2. Perhaps Professor Somin will argue that people have a constitutional right to have a microchip implanted in them when they get vaccinated to deter counterfeiting.

    3. It’s healthy to view the commands with a skeptical eye, and chafe and pull at the bit. History shows many cases where the leader was granted emergency powers and never gave them up. It may be the primary lesson of History. George Lucas even used it as the central political theme of the prequels — the phantom menace (though real ones work just fine) followed by engineering the neo-emperor into position to be voted power to deal with it.

      And then Senator Padme notes, “So this is how liberty dies, with thunderous applause.”

      Ancient Greece, Ancient Rome, 1930s Germany, Venezuela, Russia, Turkey more recently, and others would like to remind you of this.

    4. This argument is similar in form to your argument on interstate commerce regulation: “Because we can’t 100% effectively do what we’re legally entitled to do, we have to be permitted to do what we’re NOT legally entitled to do, so that after the ineffectiveness is accounted for, we end up at fully achieving our legal aims.”

      Setting aside that argument, (Because you’re, trivially, only entitled to do what you’re entitled to do!) irrational policies are seriously counter-productive, because people can SEE that they’re irrational. And once people know you’re engaged in irrational policy making, you loose all moral authority, and people start discounting even your genuinely rational policies as suspect.

      This is what has been happening over the course of the response to this pandemic: Medical/regulatory authorities have been bleeding legitimacy and trust. They’ll be generations recovering it.

      “It is dismaying to have to live this way, and to govern this way. Liars, opportunists, and cynics must bear the blame.”

      It’s darkly hilarious that you advocate lying, opportunistic, and cynical policies, (Because that IS what you’re doing here.) and say that liars, opportunists, and cynics must bear the blame. Such a lack of self awareness!

      1. No, Brett, I advocate forthright policies, which candidly concede the unwisdom of adopting a purely scientific, or a purely rights-based policy, when it comes to suppressing contagion. The problem is that neither of those approaches, nor any mix of them, will get the job done as quickly, or with as little cost, as a suppress-contagion-policy, if it is formulated take account of science, take account of human behavior, tailored to infringe rights as minimally as is consistent with the goal of suppressing contagion, and committed to restore all rights when the goal is achieved.

        To argue the contrary is to argue for a longer, costlier crisis, in a calculus premised on economic costs which already verge on ruinous, and which must reckon potential future costs in human lives as catastrophic. It is unwise to level unwarranted charges of lying and lack of self-awareness while standing on such an ill-considered platform.

        One other problem with your critique is that you claim authority you do not have—and certainly do not deserve. To assert that the national standard for rational policy making must be based on biological science—to the exclusion of every other other consideration, including effectiveness at suppressing contagion—is manifestly self-defeating. Public health emergency policy can never be a matter of pure biological science. Biological science is incompetent to answer political questions.

        Ironically, you show a near-fanatic insistence on a self-defined style of rationality which few others would share, but for that very reason, you at least exempt yourself from being counted among the ranks of the liars, opportunists, and cynics. Congratulations.

        1. You’re advocating policies which you admit are not science based. “Experience with Covid-19 has shown that scientifically irrational policies may be necessary to suppress contagion,”

          Are you advocating that the government admit that they’re not science based? That Biden go on national TV and announce, “Requiring everybody to wear masks is scientifically irrational, and that’s why I’m going to do it, because you yahoos don’t respond properly if I just stick to rational policies.”?

          Nope. You’d have him lie about it.

    5. ” scientifically irrational policies may be necessary to suppress contagion, because scientifically rational ones can and will be gamed by cynical opponents ”

      Stephen,
      That makes no sense. If rational policies are bad because they can be gamed, irrational policies will be either gamed, detroy trust in government or cause damage to the fabric of good government.

      1. Don Nico, I do not advocate irrational policies. I advocate rational policies. Those may need to depart from pure science. The narrower rationalism of pure science fails as a sole rational criterion to support public health policy. Science has little to offer on the subject of dealing with liars, opportunists, and cynics. I thought I made that clear with my discussion.

    6. Its not the bubonic plague…survival rates are over 99%. If I use your rational I force people to stop smoking due to second hand smoke.

      Marxists are always looking for a “problem” to take control and remake society in their adolescent freshman dorm midnight bull sessions with fellow gender studies majors …

      Grow a pair…if people want to not get a vaccine and roll the dice on getting the bug and surviving..its their business. I’ll protect myself and you protect yourself but all this forced mask/vaccination business is an attack on liberty

  10. We just heard over a year’s worth of wailing and gnashing of teeth over the plight of people of color. Now the left comes out with something more effective then Jim Crow ever was at promoting segregation and not a single peep from the media about how vaccine passports will disproportionately effect minorities. Wonder why…..

    1. Imagine if the proposal suggested a vaccine passport to vote. (Although I shouldn’t probably say it, because I think I saw that as an actual serious comment somewhere)

      1. Someone on this blog posted about the “vaccination as a condition of bail” case. That one really stuck with me. You hope a court would distinguish between those kinds of restrictions on liberty. I hope so anyway.

      2. If it kept democrats in office you can bet your bottom dollar vaccine passports will eventually be mandated.

  11. A very obvious counter-argument is that vaccines are by no means 100% effective. No medicine is. The existence of medicines may make lower-tech public health measures less wise or politic, but they do not make them unconstitutional.

    1. None of the other prophylactic measures are 100% effective, either.

      1. And? If the state could only do 100% effective things it could do nothing.

        1. And? If the state only had to accommodate 100% effective rights, it could do anything.

  12. It’s interesting to think about other situations where one group of persons might be constitutionally exempt from regulations binding on others. Is it wrong to force Mario Andretti to drive below the same speed limits that the rest of us must respect?

    Could you get a card attesting to an increased capacity to tolerate alcohol, and benefit from a bespoke blood alcohol level test for DUI?

    Under what circumstances is it sensible to say one group is sufficiently distinct from another that the rules must be different? Is it the scale of the difference that matters? The intensity of the restriction? The ability to decide which group to be in?

    I look forward to the article.

    1. MAAD, meet BBBAAD:

      Bros for Bespoke Blood Alcohol Assessment while Driving

    2. The problem with your analogy is that Mario Andretti is creating risks for other drivers by exceeding the speed limit, no matter how good he personally might be at driving. While the vaccinated simply aren’t creating risks for other people by failing to go about masked.

      It actually would make sense to calibrate blood alcohol levels for DUI, for people who had abnormally high tolerances for alcohol before becoming intoxicated. Suppose that somebody came out with a shot, that caused you to be stone cold sober at a blood alcohol level five times higher than would put the average person in the gutter? Would it still make sense to arrest people for driving under the influence at a blood level where they objectively weren’t actually under the influence?

      No, it wouldn’t.

  13. NYC has instituted a vaccine mandate in order to go about, meaning restaurants, bars, public events, etc. What happens if these policies disproportionately impact people of color? What then?

    Would the law not require strict scrutiny if it can be shown that a policy disproportionately impacts minorities?

    1. NYC’s policies do disproportionately impact minorities. “What happens” appears to be that leftists don’t care, conservatives make futile noise, and media don’t cover the hypocrisy.

      I don’t know whether that disparity triggers strict scrutiny, but I suspect no lawsuit will get far enough to find out.

      1. Also you get larger amounts of people just ignoring the requirements. They will make a show of it and take their chances .

    2. I don’t think so. A violation of the 14th Amendment requires intent. A disparate impact does not establish intent.

      1. Josh R, why assume 14th amendment? For all we know, deBlasio is a closet white supremacist out to hurt minorities by promulgating the vaccine passport policy in NYC to restrict their association and/or travel…or the ability to peaceably assemble and protest.

        If you’re stripping away individual liberties, which is exactly what is happening in NYC, strict scrutiny should be applied (IMHO).

        1. I assumed the 14th Amendment because of its Equal Protection clause. Moreover, I know of no disparate impact action in any anti-discrimination law in places of public accommodation (disparate impact claims have applied to housing, education, voting and employment). Finally, if a fundamental right has been abridged, strict scrutiny applies regardless of whether there is a disparate impact.

          1. disparate impact is a load of you know what….I could show DI with the NBA for example or hell how some groups are overrepresented in the media or big tech or many segments… DI is used arbitrarily to obtain social outcomes that benefit the well connected politically. It is a stupid concept contrived by those that wanted to use govt to get the outcomes they wanted..nothing to do with removing govt barriers for blacks.

    3. Would the law not require strict scrutiny if it can be shown that a policy disproportionately impacts minorities?

      No.

  14. Please define passport? I mean, I have in my mind the little book that says this person is who they say they are and of a particular nationality / political locale. Then all the other governments decide what rights and privileges, if any, they will choose to extend to the person.

    This seems to be a real inversion of how rights in the US are supposed to work, given to the people and protected from and by the government (yeah, naive, I get that).

    1. He goes into it in the preprint, much more eloquently than I will now summarize:

      Two classes of passports:

      1) a document (physical, digital or both) issued by some state or federal govt that certifies the carrier as having been vaccinated. Lots of diff ways to implement this. Who knows which is best.

      2) a set of easements of restrictions that are only applied to the vaccinated. Could be applied directly to individuals or indirectly thru regulation of commerce E.g. if you’re vaxxed you don’t need to wear a mask to go the movies. If you aren’t vaxxed you need to wear a mask.

      The authors note that #2 need not be paired with #1, but that it would be most effective if it is paired with #1. Effective and prudent are not the same thing, which the authors note.

      Also note that the article endorses the passports in a rather vague sense, making sure to issue strong caveats that any such system will obviously still be subject to judicial review.

      1. PS my summary applies to the first half of the article, which makes the case that the constitution does not prohibit the issuing of vaccination documents or the selective easement of restrictions for the vaccinated.

        The second part I’m not so sure about. It’s nuanced. It asks the question: will the constitution **require** easement of restrictions for the vaccinated if a vaccinated person invokes some fundamental right (enumerated or unenumerated)? The authors say yes, but that it will depend on the invoked right in question. That seems reasonable, but I just don’t know. Have to think about it more.

        1. When you’re talking fundamental rights, the government really is supposed to be requires to use the least infringing approach to any goal that implicates the right, so he does have a point.

      2. Making still more assumptions.
        When I was 16. A drinking passport (drivers license). It worked great in a handful of establishments that were more interested n the sale than diligent application of mathematics. That restaurant that is not getting their 2.8 table turns on Tuesday night might not question a sketchy passport. That will depend a lot on the lies being told by officials.
        The case comes to mind of California banning outdoor dinning, while across the street a movie shoot was serving hundreds, but the cafe couldn’t have 6 outside tables.
        I can’t see this working considering all double standards govt have entertained.

        1. One thing is certain: it will be messy

  15. This assumes the govt is honest and striving for the public well being.

    We know the bureaucracy has been labeling CAGCC As a public health concern for decades. Ditto for guns.
    With COVID churches were shut down, but not “protests”.
    Like all absolute power, the left immediately hi jacks the initiative to punish their political foes and consolidate power.

    1. This = This assumes the govt is honest and striving for the public well being.

  16. Say there’s a variant that the vaccination prevents you dying from COVID but still allows it to be spread. As a passport holder, you’re exempt from travel restrictions and travel to another country where you infect and kill a foreign national. Does that foreign national’s family have a case to sue the United States for wrongful death?

    1. I don’t think so, unless the two countries had some treaty specifically on that subject. And even if they did it might get complicated, because presumably the non-US country in this hypo admitted that person knowing full well that they could transmit the virus.

      I do wonder if we’ll see something like that between US states at some point. State A prohibits travel from state B, person from state B slips through the cracks and then there’s some harm alleged.

      1. ” State A prohibits travel from state B”

        You’re already in seriously dicey constitutional territory at that point.

  17. “But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. ”

    Unfortunately, it seems there is little evidence that those vaccinated against COVID-19 pose less danger of transmitting the disease that those who are not vaccinated. But fortunately and on the other hand, the disease itself is not too great of a danger for some values of “great danger”; it’s comparable to the Hong Kong flu pandemic, when boomers were doing this: https://www.history.com/.image/ar_16:9%2Cc_fill%2Ccs_srgb%2Cfl_progressive%2Cq_auto:good%2Cw_1200/MTU3ODc5MDg3NTA4ODI1NDE3/usa-bethel-ny-1969-joe-cockers-band-woodstock-festival.jpg

    1. The c-19 vaccines, unfortunately, are leaky. Leaky Vaccines are worrisome.

      https://www.pbs.org/newshour/science/tthis-chicken-vaccine-makes-virus-dangerous

  18. The article has been pulled from SSRN at the request of the Author!
    Many parts unconsidered is in some places the majority of new cases are falling in the vaccinated category. Singapore is a good example as they had 74% of new cases had some form of vaccination, 44% fully and 30% partial, and 25% were not vaccinated. The vaccinated had a slightly easier time but they would still be contagious so a vaccine passport based on vaccination would not be any kind safety net. Novavax might end up being a better option but no one discusses those that have recovered. Wonder why?

  19. The government has no legitimate right to impose any of these restrictions on the people. The disease is not remotely serious enough to justify any of this. It killed, if you can believe the official reports which are problematic, 0.19% in the US and 0.06% worldwide. This is hardly a justification for massive panic and allowing governments to order everyone about quite outside normal law making processes. The government has shown for many years that power over more and more systems and all the people is the goal NOT our health. 2020 should have convinced even the most skeptical that this is the case.

    So talking of vaccine passport as constitutional right is a complete and utter absurdity as government has no legitimate power to create such a thing or impose arbitrary restrictions and demands on the people in the first place.

Please to post comments