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Likely Public Administration & Legal Challenges That Vaccine Mandates and a Possible Airplane Ban Will Generate

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll G. Robinson and Michael O. Adams
September 25, 2021

The following are issues that we believe will need to be addressed as our nation attempts to control the pandemic, using vaccine mandates and a possible air travel ban for the unvaccinated.

Fraud

One issue to consider is new criminal enterprise around fraudulent vaccine passport production, as there is no national tamperproof vaccine passport, and a significant majority of states have no such document either. Additionally, there is no uniformity in the passports currently being produced across the country and internationally. There are already news stories about fake passports being produced in New York City to circumvent their bar and restaurant ban as well as international stories about attempts to use fraudulent vaccine passports to enter foreign countries.

Domestic vs. International Air Travel and Exemptions

Will an airline ban apply to both domestic and international passengers? What does TSA do with people who offer doctor’s notes and/or religious exemption documentation as to why they have not gotten vaccinated? (We believe this issue will require judicial intervention in light of existing U.S. Supreme Court precedents in the area of religious liberty and medical treatment as well as prior decisions upholding a financial penalty for not being vaccinated as opposed to a ban. See generallyPeter S. Can Ellis and Joel Lau’s article, The Surprisingly Strong Supreme Court Precedent Supporting Vaccine Mandates that appeared in POLITICO on 9/8/2021, 5:00AM EDT.)

Other Public Transportation

If there is an airline ban, will there be an Amtrak and public transit ban nationally? What are the unintended impacts on public transit users—their access to food, employment and healthcare if they choose to remain unvaccinated?

Which Passports?

Which vaccine passport(s) will TSA be allowed to accept if an airline ban is imposed by Executive Order as opposed to legislation by Congress?

Liability

What about business owners? What liability exposure do they have if they mistakenly reject some potential customer’s vaccine passport, thereby banning someone who is in fact vaccinated? What about them mistakenly accepting a forged document, resulting in other customers getting sick? These same scenarios also apply to TSA and the airlines. Will the airlines be indemnified against mistakes made by TSA?

What happens if a business owner reports someone as using fake proof of vaccination and the person is arrested when in fact they were vaccinated and their paperwork was valid?

Do public entities or private sector businesses have any legal exposure if people die from taking the vaccine when mandated or catch COVID-19 after being vaccinated, especially if they die?

These are but a few of the questions that need to be fully discussed and considered by The White House and federal policymakers as well as governors, state legislators and local school board, city and county officials.


Author: Robinson and Adams are professors in the public administration program at The Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University in Houston, Texas. Robinson is a former At-Large Houston City Council Member who has also taught at two law schools in Houston.

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