Frederick Kushmore III, October 29, 2021
During the Covid-19 Pandemic, countries took various strategies to combat the pandemic. One of the core aspects of this was a ‘lockdown’ where people were to stay at home and travel was restricted around the world. While all nations have public laws, there had not been a major pandemic since the Influenza Pandemic of 1918. As such there is no clear guide for getting back to normal and the laws for reopening are varied around the world.
Sovereign countries have long had broad public health powers in times of disease like in the Uniteds States with §361 of the Public Health Service Act. The practice of quarantine can be seen under Title 42: Public Health in the Code of Federal Regulation, which covers interstate and international quarantines. Even with long standing laws, there has not been one path out of the pandemic.
The United States is set to open its borders to non-essential travel from Canada and Mexico on November 8th, while essential travel has been allowed for a while. Australia is planning to open its state borders and the international border for the first time since the pandemic began. In tourism focused countries like Thailand and Madagascar are setting up plans to allow international travelers upon proof of vaccination and a negative Covid-19 test. There are many different paths but the goal is to travel without quarantining and without the spread of disease.
Currently, in the United States there is a requirement to either be vaccinated or have proof of a negative test for international arrivals, but, there is no proof of either required for travel domestically. Further only few states have set ‘passport’ style requirements, where proof of vaccination is required. Some have banned them all together. Because the Federal government only has the power to regular interstate commerce, and international commerce it can regulate international arrivals but has limited power over the states themselves. The European Union allows for vaccinated travelers to enter, with proof. Travelers need the EU Digital COVID Certificate which allows for free movement around any of the member states, after proof of vaccination, negative test, or recovery from the virus. With some of the member states like Germany, France, and Italy having ‘pass’ style apps for going to out to restaurants, stores and other venues.
Europe has not set up ‘mass mandates’ to require the general population to receive the vaccine, mandates exist under public health statutes and only cover health care workers and certain government workers. With the public, countries in Europe have taken the ‘pass’ approach. A common factor is the that the ‘pass’ approach is effectively a mandate, without being a compulsory mandate, which sidesteps a mandatory vaccine question.
For example, France at the outset of vaccine rollout had a high level of vaccine hesitancy and a wave of protests over the summer over the planned health pass which was implemented. A key factor for the French in getting the shot was adopting the health pass was the inability to go to restaurants and bars if one did not comply. France with only a direct mandate for healthcare and workers now has an 88% vaccination rate, one of the highest in Europe.
In the United States, the federal government does not have the power to issue a general vaccine mandate unless Congress works within its enumerated powers, the power of vaccines is left to the states. In 1905, the Supreme Court decided that the mandatory smallpox vaccine laws in Cambridge, Massachusetts were constitutional as the mandate had, “real [and] substantial relation to the protection of the public health and safety.” There have been legal challenges to the current state issued mandates and the majority have been upheld.
Employer based vaccine mandates are also on mixed footing. In privacy focused Europe notably, Germany, employers are not allowed to ask about an employee’s vaccination status due to privacy concerns. But in Germany there is already the pass system to engage in daily life. While, in Australia, employer mandates are up in the air as they may be deemed “lawful and reasonable” for the operation of a business, where it would be legal. In the United States employers have the right to have mandates as long as it is not discriminatory.
What does this all mean? On the international travel, front there is not likely to be any clear standard other than being vaccinated allows for a greater ability to travel no matter the destination. Vaccine passports have been met with mixed reception, but such systems have successfully increased vaccination rates without imposing a direct mandate by focusing on the positives. This is because general vaccine mandates affecting the entire population will be legally challenged and likely successful. However, such mandates done through public health orders, at the local level, or by employers the orders will likely be upheld.