COVID vaccine passports pose more questions than answers

In Hollywood movies of a certain vintage, the Nazi functionary barks at a frightened citizen, “May we see your papers?” as he demands production of an identification card.

ID cards are a hallmark of the police state. They allow the government to collect personal data — who we are, where we live, where we were born — and potentially our entire medical histories, including whether we have been vaccinated. National IDs are required in many countries, such as Russia, China, Germany and France. France has had them since 1940, when the national identity card helped the Vichy authorities identify 76,000 Jews for deportation to the death camps.

We have never had national IDs in America. A driver’s license is the closest thing to it, but not everyone drives. A passport is close, but not everyone travels internationally. 

The COVID-19 crisis has caused the issue to resurface. How convenient it would be for the government to require a vaccine passport to be produced upon checking into a hotel, entering a restaurant or attending a sporting event. Of course, not everyone has been vaccinated, and not everyone is required to be vaccinated. But, roughly 41 percent of America’s population are reported to have received the COVID-19 vaccine. Those failing to produce the card might be lodged in a separate wing of the inn or received in a segregated section of a restaurant or seated in the back of the bus behind a guard-all shield.

New York has showcased a prototype domestic ID for COVID called an “Excelsior Pass.” Excelsior is the Latin motto of New York State. It means “ever upward.” They are the words Gov. Andrew Cuomo used to close his daily COVID briefings. In a passing nod to diversity and inclusion, the Excelsior Pass is available on a voluntary basis in nine languages besides English and Yiddish. A real tzimmes! That’s Yiddish for “stew” if you are uninitiated. Possession of the pass is voluntary. 

The Excelsior Pass, according to the state website, “provides a free, fast and secure way to present digital proof of COVID-19 vaccination or negative test results.” I have an Excelsior Pass stored on my smartphone with the “Excelsior Pass Wallet app,” available free of charge from your favorite app store. It states my name and date of birth and attests that I have been vaccinated. My pass expires on Aug. 9, six months after my vaccination date.

What this entitles me to is not yet clear. No one has ever asked me to present it to prove that I have been vaccinated. I tried to use it the other day to meet a friend for lunch at the Harvard Club, but the man at the door didn’t seem to know what it was. At the moment it is a road to nowhere. Will it get me into a Yankee or Knicks game or allow me to go to Jones Beach this summer? I doubt it, but all will be revealed.

In all the Nazi flicks I ever saw, someone always has forged papers, so the pass has stern instructions from the state, as follows: “Please have photo ID available when presenting your pass for verification.” I guess this means that the pass is non-transferable.

The American Civil Liberties Union is opposed to national identity cards, concluding that it diminishes the freedom and privacy of law-abiding citizens. We have learned over the course of time to beware the opening wedge. If you have to prove you have been vaccinated against COVID-19 to get into a rock concert or the theater, will you also have to prove that you are free of other contagious diseases like HIV/AIDS, stomach flu or hand, foot and mouth disease? 

True, it is essential to revive the economy and get Americans back to work and play. In April 2020, Trump said: “You know, they [Americans] want to see basketball and baseball and football and hockey. They want to see their sports. They want to go out onto the golf courses and breathe nice clean, beautiful fresh air. No, I can’t tell you a date, but .. it’s going to be sooner rather than later.” Sadly, it was to be later rather than sooner. 

But what are the legal and ethical obstacles for the government to amass personal data on citizens and input the data into a scannable card? Or for that matter, for businesses to require employees, suppliers or customers to show digital proof of vaccination as the pre-condition to doing business? Or for colleges to demand that students provide a pass before they can matriculate? Rutgers, Brown and Cornell have already done this.

The Supreme Court held in 1905 that states could require residents to be vaccinated against smallpox or pay a fine. Justice John Marshall Harlan said in Jacobson v. Massachusetts that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Whether the present court would extend this protection to digitizing the health records of citizens so they can go to the movies is another question.

Meanwhile, the whole idea may be a non-starter. Republican Govs. Greg Abbott of Texas and Ron DeSantis of Florida have issued executive orders barring those doing business with their states from requiring proof of vaccination. And White House Press Secretary Jen Psaki has said flatly that there will be no federal vaccinations database and no requirement that everyone “obtain a …vaccination credential.” Our government is divided and dysfunctional. But is that surprising news to anyone?

James D. Zirin is a former federal prosecutor, an author and TV talk show host in New York.