Vaccine Passports

Once Covid-19 vaccines became widely available in March of 2021, New York’s now-disgraced former Governor Andrew Cuomo launched a vaccine passport program. Governor Cuomo, unlawfully circumventing the state’s administrative procedure act, forced businesses to require patrons to show proof of vaccination or a negative Covid test, or else be barred from entering. Many other cities in Democratic strongholds such as Washington, DC soon followed suit, enacting similar requirements to participate in public life.

The programs had a major flaw: they operated on the false premise that the existing Covid-19 vaccines stopped the virus’s spread. After all, the ostensible justification for the passport programs was arresting transmission of the virus, not dictating people’s individual health decisions, which courts (and society) typically consider outside the purview of government authority.[1] Contrary to the unabashed false claims of public health and government officials—including former President Biden—the vaccines were not tested for prevention of infection and transmission. Rather, they attained emergency use authorization based on the theory that they reduced severity of symptoms.[2] In fact, it rapidly became apparent that the vaccinated, much like the unvaccinated, still became infected and still spread the virus.

The passport programs not only lacked a scientific or rational justification, and did nothing to reduce Covid-19 deaths, but predictably they were economically and socially harmful. For starters, coercive health measures tend to backfire, as people often view forced medical treatments or procedures—as well as the public health authorities behind the coercion—with suspicion.[3] Indeed, as many vaccine passport opponents predicted, the strong-arm tactics government employed to increase short-term Covid-19 vaccine uptake has resulted in heightened long-term skepticism of vaccines in general and thus reduced vaccination for such illnesses as measles, mumps and polio, which are now reemerging.

Governments’ insistence that vaccine-induced immunity was superior to that acquired through infection, which conflicted with the scientific evidence and many people’s experience, further contributed to the breakdown of trust between the public and health authorities.[4] Businesses, which had to devote significant resources to enforcing the passport programs and turning away people unable to provide the requisite proof, accordingly lost revenue. Employees tasked with enforcing the passport requirements faced abuse from angry prospective customers.[5]

Implicitly recognizing the failure of these programs, cities quietly rescinded the proof of vaccination requirements in late 2021 and early 2022. This episode in American history illuminates the problem with rule by executive fiat. Without accountability to the public, policies often reflect a mayor or governor’s political ambitions, or the single-minded decisions of unaccountable bureaucrats, as opposed to compromise determinations reached through the deliberative process of a democratically elected legislature.

[1] Jacobson v. Massachusetts, 197 U.S. 11, 34 (1905).

[2] See https://www.fda.gov/media/148542/download

[3]Talya Porat, et al., “Vaccine Passports” May Backfire, PubMed (Aug. 14, 2021), available at https://pmc.ncbi.nlm.nih.gov/articles/PMC8402442/ (last viewed Feb. 27, 2025).

[4] Kevin Bardosh, et al., The unintended consequences of Covid-19 vaccine policy, BMJ Global Health (May 2, 2022), available at https://pmc.ncbi.nlm.nih.gov/articles/PMC9136690/ (last viewed Feb. 27, 2025).

[5] Id.

April 10, 2025