Here’s why governments may be constitutionally required to provide a vaccine passport program for people under continuing restrictions. Under the U.S. Constitution, the government may not tread on fundamental rights unless the policy is “the least restrictive means” to achieve a “compelling” government interest. Even some rights considered nonfundamental may not be infringed without a rational or non-arbitrary reason. Before vaccines, blanket lockdowns, quarantines, and bans on things like travel, public gatherings, and church attendance were a necessary measure to slow the pandemic. The various legal challenges to these measures mostly failed—rightly, in our view. But now, a small but growing set of the population is fully vaccinated, with high efficacy for preventing transmission and success rates at preventing serious illness close to 99 percent or higher.
Facilitating mass immunity—and exempting the immunized from restrictions—is now both the least liberty-restrictive method for ending the pandemic through herd immunity and the most effective one. Imagine a fully vaccinated person whose livelihood is in jeopardy from ongoing travel or business restrictions. She might go to court and argue: “I present little or no danger to the public. So restricting my freedoms and preventing me from contributing to society and the economy isn’t rational, let alone the least restrictive means of protecting the public. Since you’re not lifting restrictions for everyone, the Constitution requires that I be exempt.”
This argument alone should be enough to justify mandating that passports be made available where COVID restrictions are still in place….
The NYTimes also notes that surveys suggest that the right to go maskless could increase vaccine take-up:
Enforcement is an issue but this might work well with universities and workplaces. See Ilya’s post for more.