States Moving Against Vaccine Passports

I am generally in favor of people getting covid vaccinations, and I was vaccinated myself a long time ago. But vaccines aren’t for everyone, and many have worried that either public or private entities may require proof of a covid vaccination in order to travel or participate in other normal activities. So far only one state, New York, has implemented a covid passport system called “Excelsior Pass.”

While the phrase “vaccine passport” has been used in various ways, many are concerned that requiring proof of vaccination will infringe privacy rights and civil liberties. Thus, a number of states have now banned implementation of vaccine passports by executive order. Yesterday South Dakota became, I believe, the seventh such state, as Governor Kristi Noem issued an order that you can read here. The order was accompanied by this statement:

Yesterday, Governor Kristi Noem signed Executive Order 2021-08, which bans government-instituted vaccine passports in South Dakota.

“Since the start of the COVID pandemic, we have provided the people of South Dakota with up-to-date science, facts, and data and then trusted them to exercise their personal responsibility to make the best decisions for themselves and their loved-ones,” said Governor Kristi Noem. “We’ve resisted government mandates, and our state is stronger for it.

“I encourage all South Dakotans to get vaccinated against COVID-19, but we are not going to mandate any such activity,” continued Governor Noem. “And we are not going to restrict South Dakotans’ exercise of their freedoms with un-American policies like vaccine passports. In our state, ‘Under God, the people rule.’ And that is how we will operate for as long as I am governor.”

These executive orders vary. Some apply to businesses located in the state, which raises issues of the governor’s authority. Governor Noem’s order, consistent with her commitment to constitutional limited government, applies only to government agencies and not to private businesses.

The Biden administration has stated that it will not seek to implement a national vaccine passport scheme. But the potential for interstate conflicts, and for litigation over the extent to which states can either mandate or prohibit private businesses from requiring such documentation, is considerable. My own opinion is that vastly too much attention has been paid to the coronavirus, and the sooner we get back to normal, in every respect, the better. “Normal” does not include carrying around proof of vaccination.

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