The Federal Government May Need to Play a Role in Vaccine Credentials, Despite Reluctance

The New York Governor's Press Office shows the "Excelsior Pass" app, a digital pass that people can download to show proof of vaccination or a negative COVID-19 test.

The New York Governor's Press Office shows the "Excelsior Pass" app, a digital pass that people can download to show proof of vaccination or a negative COVID-19 test. NY Governor's Press Office via AP

The Biden administration has repeatedly said there will be no federal mandate, but it may be difficult to sit on the sidelines as states and businesses develop their own policies, some experts say.

The Biden administration has repeatedly said the federal government will not be in charge of any sort of vaccine credentials including for travel, but some experts say overarching guidance might be needed in order to avoid inconsistencies as states and businesses establish their own policies. 

“As of this time, the U.S. is not accepting proof of COVID-19 vaccination for entry into the U.S., including for U.S. citizens. Rather it maintains a requirement for an individual to provide a negative test result or document recovery from COVID-19,” said Jennifer Kates, senior vice president and director of Global Health and HIV Policy at the Kaiser Family Foundation. “This is likely to pose challenges as travel continues to pick up and fully vaccinated travelers, many of whom will be using vaccine passports from elsewhere, will be faced with having to get tested to enter the U.S.” She noted this requirement is from an order Biden signed in January, which could be subject to change. 

“For the purposes of international travel, it is likely the federal government will have to play some role here, either accepting vaccine passports from other countries or finding some other way to allow for fully vaccinated individuals to enter the U.S. without needing a test,” Kates said. “Domestically (within the U.S.) is another story and the federal government has been pretty clear that it will not be issuing a passport for domestic use. That said, the federal government has an important role to play in helping to set standards for any passport as well as addressing equity concerns around access.” 

White House Principal Deputy Press Secretary Karine Jean-Pierre reiterated during a press gaggle on May 28, “there will be no federal vaccination database and no federal mandate requiring everyone to obtain a single vaccination credential,” when asked about comments from Homeland Security Secretary Alejandro Mayorkas regarding travel that the department later had to clarify.

“The U.S. government recognizes that other countries have or may have foreign-entry requirements,” she said. “We will be monitoring these and helping all U.S. travelers meet those, but there will be no federal mandate requiring anyone to obtain a single vaccination credential.”

Lawrence Gostin, Georgetown University professor and director of the school’s O’Neill Institute for National and Global Health Law, told Government Executive he doesn’t think “the federal government should mandate vaccine passports” and doesn’t believe the president has the power to do so. 

“But I am highly concerned that the Biden administration has not offered technical guidance and assistance to the states, businesses and universities on how to create effective and privacy-protective proof of vaccination systems,” he said. “We are likely to see a Wild West scenario where there are inconsistent and inaccurate systems rolled out by states and businesses,” which “will be haphazard and will lose trust among the public.” 

Private companies are starting to create their own systems, “some with highly variable quality and some that invade privacy,” so “the federal government can't just sit back and watch from the sidelines,” said Gostin. 

“There are so many uncertainties with regard to the specifics of such guidance or policy that I believe the best use of government resources is to facilitate making the vaccines as easy as possible to be obtained,” said Roy Goldberg, a partner at the law firm Stinson LLP who focuses on aviation and other forms of transportation, when asked if he thinks the federal government should provide any type of guidance for industry as they create their own vaccine passports for travel. “If those opposed to vaccines would instead get them, that would largely [render] the issue of passports [moot].” 

He also noted that, “the federal government has done an incredible job getting the vaccines approved and distributed, and has rightly encouraged Americans to get vaccinated and has facilitated those efforts greatly.” 

While not specific to travel, Jodi Daniel, partner in the law firm Crowell & Moring’s health care group and a member of the group’s steering committee, previously told Government Executive she thinks “it’s really important that the federal government set some guidelines or best practices or criteria that those organizations that are developing the credentials can address,” such as on privacy, transparency, veracity of information and use of data. 

Joel Zinberg, senior fellow at the Competitive Enterprise Institute, a libertarian think tank focused on economic policy and regulatory issues, commended the government for letting the private sector take the lead, but said the government still may need to have a role. 

“Should the demand for passports be widespread, the U.S. government could facilitate the adoption of standards that maximize interoperability, accommodate a wide variety of software solutions, provide data security and privacy protections, and meet international standards to expedite travel and commerce,” he wrote. “This is particularly the case with international travel, since so many countries appear to be contemplating requiring proof of immunity. Both historically and under the Constitution, the federal government has the job of regulating the country’s borders, so only the federal government can coordinate standards with other nations.” 

Meanwhile, several Republican lawmakers have introduced legislation recently that would ban the federal government from mandating and/or being involved with vaccine passports, even if administration officials decide agencies should play a role. 

Sens. Ted Cruz, R-Texas, Mike Braun, R-Ind., and Cynthia Lummis. R-Wyo., introduced a bill on May 28 that would ban the federal government from issuing vaccine passports or working with third party groups (such as airlines) to create them. Sen. Rick Scott, R-Fla., also introduced legislation that would prohibit the Transportation Security Administration from requiring vaccine passports for domestic flights. 

When asked for comment on the White House’s repeated assertions on no federal mandate, Scott’s office said the senator “agrees that the federal government has no business requiring travelers to turn over their personal medical information to catch a flight,” so that is why he introduced the bill with this specific ban. 

“There are substantial privacy and civil liberty issues raised by people on both the left and the right,” in reference to vaccine passports, Thomas Gies, a labor and employment litigation partner at the law firm Crowell & Moring LLP, told Law360.

Similar to the debate over a national mask mandate earlier in the pandemic, the president’s authority under the Constitution to establish a vaccine credential requirement is unclear, he said. “This is a fascinating legal issue that has informed many of the decisions made by both [former] President Donald Trump and now President Joe Biden during the pandemic,” he noted.

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