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Florida Governor signs executive order that bans mandated use of Covid-19 vaccine passports. The Order, effective immediately, says vaccines are available but not mandated in the state and cites freedom and privacy concerns as the primary basis for the action.

Given that Florida public schools require MMR vaccinations (precedent?), how is it possible that such an order be lawful?

Other interesting & relevant precedent includes:

  • Jacobson vs. Massachussets: Supreme Court finds Vaccines can be mandatory
  • Roman Catholic Diocese Of Brooklyn, New York v. Andrew M. Cuomo

I am having difficulty reconciling that the Supreme Court would uphold fines for not vaccinating, yet it concluded that NY state violated the right to congregate, despite a pandemic.

gatorback
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    Without opining as to whether this is a good idea or within the governor's power, requiring something in one case but banning requiring it in another isn't incompatible. For instance, you're required to pay taxes on your income, but it's illegal to require you to pay taxes to vote. – Ryan M Apr 03 '21 at 06:05
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    Mandatory Variola Vera vaccination was deemed constitutional more than 100 years ago. Need to look that up – Trish Apr 03 '21 at 07:20
  • @Trish Is this what you would suggest? https://www.history.com/news/smallpox-vaccine-supreme-court – gatorback Apr 03 '21 at 13:56
  • Yes, Jacobson was the case I remembered. – Trish Apr 03 '21 at 13:57

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As is the case in all 50 states there is statutory and constitutional law allowing governors to issue orders, pursuant to a declared emergency. The most recent order from Florida is here. As usual, the order includes relevant citations, viz.

Article IV, Section 1 (a) of the Florida Constitution and by the Florida Emergency Management Act, as amended, and all other applicable laws

The section numbers and act names differ between the 50 states, but it reduces to the same logic as was employed to mandate different degrees of shut-down and mask-wearing. The emergency powers granted to the governor are very broad, and nothing within §252.36 hints that he overstepped his authority. Such powers might (rarely) be limited under a strict scrutiny judicial review, though such reviews in the age of covid have had limited success. There is no construal of "fundamental rights" whereby a limit on what government agencies can do could be called into question.

Governments have a well-established power to regulate businesses, which this order does. The order addresses a compelling government interest (assuring the privacy of individuals, and their ability to live their lives without discrimination, etc.), and it is narrowly tailored (temperature screening is still allowed). Perhaps a business can file a lawsuit, advancing a non-obvious argument that the order infringes on the liberty of businesses, but I doubt that it would gain judicial traction.

This is not to say that the Florida legislature could not pass a mandatory vaccination law coupled with a mandate to prove one's compliance: but they have not done so. So until a law is passed by the Florida Legislature that says otherwise (and its veto is overridden), the order is just as legal as its thousands of cousins have been.

user6726
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  • Or perhaps a business can file a lawsuit, advancing the eminently obvious argument that the order infringes on the liberty of businesses to refuse to serve customers who endanger other occupants of their premises. – phoog Apr 05 '21 at 03:34