INOCULATION INJUSTICE: A FEDERAL RESPONSE TO VACCINE LINE JUMPING  

By: Annika Beck, Volume 105 Staff Member

The COVID-19 pandemic has generated a variety of antisocial behaviors, from profiteers filling warehouses with disinfectants[1] to tenants demanding sexual favors from clients who are behind on rent.[2] Now that COVID-19 vaccines are available for those at highest risk of infection, one more antisocial behavior must be added to the list: jumping the vaccine line. There are widespread reports of healthcare workers who are at low risk of infection taking advantage of their institutions’ honor systems and getting their shots before their colleagues at higher risk.[3] Patients,[4] and at least one employer,[5] have been caught trying to access surplus vaccines by giving “charitable” gifts. And foreign nationals are landing in the U.S. to skip the vaccine lines in their home country.[6]

To date, law enforcement has focused its resources on prosecuting price gouging, COVID-19 scams, and vaccine tampering.[7] Now, state governments administering the vaccine rollout are realizing that vaccine line jumping is a problem that requires a stick, not a carrot. In California, Governor Newsom has promised that healthcare providers who jump the vaccine line will lose their licenses.[8] Governor Cuomo of New York has promised the same but goes even further: he seeks to impose massive fines on individuals and institutions, and he is recommending that the state legislature make jumping the vaccine line a crime.[9] This Post explores the legal tools available to the federal government to enforce vaccine guidelines. Vaccine line jumping is expected to get worse as eligibility expands,[10] so the time to sharpen those legal tools is now.

I. HOW VACCINE LINE JUMPING HAPPENS

At the time of this writing, two COVID-19 vaccines have been granted Emergency Use Authorization (EUA) by the Food and Drug Administration (FDA).[11] As these vaccines roll off the assembly line, the federal government allocates them to the states.[12] State departments of health use their own criteria,[13] largely modeled after those of the Centers for Disease Control and Preventions,[14] to distribute vaccines among residents. When organizations like hospitals and long-term care facilities receive doses from the state health department to administer to their employees, they are expected to comply with their state’s guidelines.

Vaccine line jumping happens when individuals get vaccinated before their state guidelines recommend it. This happens at hospitals with poor rollout plans, where staff find themselves competing against each other, and even against members of the public,[15] in a vaccine “free for all.”[16] It can also happen when hospitals vaccinate low-risk staff members ahead of community members at greater risk.[17]

So, what can be done? Here are a few avenues to ensure that people abide by their state’s vaccine guidelines.

II. HOW THE FEDERAL GOVERNMENT CAN DETER LINE JUMPING

A promising tool for Congress to use in deterring vaccine line jumping would be the spending power.[18] Congress could require that states seeking vaccine rollout funds from the federal government implement some kind of enforcement program to ensure that the vaccines are distributed in accordance with the state’s guidelines.[19] This requirement would ensure that states investigate and prosecute violations of their guidelines but would give them flexibility in doing so. To be constitutional, however, the amount of money at stake could not be so great as to be coercive; states must have a real choice between enforcing vaccine guidelines and going without the funding.[20]

This approach allows states to craft and execute their own plans to prevent and punish line jumping. For example, some states may amend their criminal code to establish new offenses, others may use existing laws to prosecute line jumpers, and others might issue fines from the public health authority. State variations on enforcement would provide political scientists and public health professionals a unique opportunity to determine the most effective means for deterring vaccine line jumping. For example, the widely condemned prosecution of a doctor who administered doses that were about to expire provides a good example of what vaccine line jumping prosecution should not look like.[21]

In addition to requiring states to develop vaccine prioritization enforcement plans, the federal government could take two more steps to combat vaccine line jumping. First, Congress could use its Commerce Clause powers to prevent any person from traveling to another state to get a vaccine.[22] Wealthy New Yorkers have no business flying to Florida to take advantage of its lax vaccination guidelines.[23] Second, the Secretary of State could instruct consular officials to revoke the non-immigration visas of foreign nationals who come to the U.S. to get the vaccine.[24] Foreign nationals should not be able to skirt the vaccine line in their home country just because they can afford to relocate to the U.S. for three to four weeks.

III. WHY THE FEDERAL GOVERNMENT MUST ACT

Some might say that this level of enforcement is unnecessary. Some public health experts have argued that the goal of the vaccination effort should be to get as many people vaccinated as quickly as possible, so slowing the process down with verification procedures would be counterproductive.[25] But since vaccine line jumpers take a dose away from a person at higher risk of contracting and spreading the virus, is that not also counterproductive?

Even if we accept the premise that enforcing public health guidelines would be counterproductive from a scientific perspective, there is still a strong moral argument for vaccine priority enforcement. Responding to a reader in New York who asked him whether it was morally acceptable to jump the vaccine line, acclaimed philosopher Kwame Anthony Appiah wrote: “you will be taking advantage of privilege in a way that undermines confidence in an ethical system . . . the immediate consequential harm of your single violation will be very small. But when reasonable rules have been set in place, morality requires us to do our part. . . .”[26] For the rich and well-connected, this might be hard to swallow but, as bioethicist Glenn Ellis points out, “unlike lobbying for a better table at a restaurant . . . taking a vaccine dose that was meant for an essential worker could cost someone their health or their life.”[27] While scientific considerations should guide our policymaking, ethics should as well: in a time of strife for all, we should strive for fairness for all.

A final observation: in the failed war on drugs, the U.S. disproportionately arrests people of color for possessing substances they should not have.[28] But now, when well-connected people acquire a substance to which they have no right—sometimes by taking advantage of vaccine clinics in minority communities—will the government just stand by?[29]

It must not. Congress and the Executive Branch have powerful tools at their disposal. Congress has its Commerce Clause and spending powers and the Executive Branch can take immediate action to deter foreign nationals from skipping the line in their home countries. If government does not act, the vaccine line will only exist for those without money and friends in high places.

 

[1] Memorandum from William Barr, U.S. Att’y Gen., to all U.S. attorneys (Mar. 24, 2020), https://www.justice.gov/file/1262776/download [https://perma.cc/46ZS-RP6H].

[2] Memorandum from William Barr, U.S. Att’y Gen. to the Assistant Att’y Gen. for Civ. Rts. and all U.S. attorneys (Apr. 23, 2020), https://www.justice.gov/coronavirus/page/file/1270951/download [https://perma.cc/62NY-E42C].

[3] See, e.g., Joseph Goldstein, Hospital Workers Start to ‘Turn Against Each Other’ to Get Vaccine, N.Y. Times (Dec. 25, 2020), https://www.nytimes.com/2020/12/24/nyregion/nyc-hospital-workers-covid-19-vaccine.html [https://perma.cc/3FTR-VF37]; Gabrielle Emanuel, COVID-19 Vaccine Rollout Is Not Going Well at 1 Boston Hospital, Nat’l Pub. Radio (Dec. 24, 2020 7:19 AM), https://www.npr.org/2020/12/24/949926156/covid-19-vaccine-rollout-is-not-going-well-at-1-boston-hospital [https://perma.cc/ZDQ4-BXHX].

[4] Laura J. Nelson & Maya Lau, The Wealthy Scramble for COVID-19 Vaccines: ‘If I Donate $25,000 . . . Would That Help Me?’, L.A. Times (Dec. 18, 2020), https://www.latimes.com/california/story/2020-12-18/wealthy-patients-scramble-covid-19-vaccine [https://perma.cc/9QVE-5BH4]. See also Julie K. Brown, Who Can Get the COVID Vaccine in Florida? Hint: It Helps If You Have Donated to a Hospital, Miami Herald (Jan. 7, 2021), https://www.miamiherald.com/news/coronavirus/article248323565.html?ac_cid=DM359154&ac_bid=-931535184 [https://perma.cc/57MF-KL4D] (reporting that three Florida hospitals are vaccinating big-dollar donors before the general public).

[5] Chris Jewers, London Property Investment Firm That Offered a GP Surgery £5,000-a-Go for Vaccine Queue Jump for Its Staff Is Forced to Apologise Following Outraged Reaction, DailyMail.com (Jan. 9, 2021, 11:58 PM), https://www.dailymail.co.uk/news/article-9128063/London-property-firm-tried-skip-vaccine-queue-offering-GPs-5-000-inject-staff.html [https://perma.cc/5ULX-DQXR].

[6] Bianca Padró Ocasio, Jimena Tavel, & Adriana Brasileiro, ‘It’s Just Not Fair.’ Florida Sends Mixed Signals to Foreigners Getting COVID Vaccines, Miami Herald (Jan. 8, 2021), https://www.miamiherald.com/news/nation-world/world/americas/article248347830.html [https://perma.cc/X6YA-FWPL].

[7] See Dep’t of Just. Coronavirus Response, https://www.justice.gov/coronavirus/DOJresponse [https://perma.cc/LTJ7-K5Q5]; Hospital Pharmacist to Plead Guilty to Attempting to Spoil Hundreds of COVID Vaccine Doses, Dep’t of Just. (January 26, 2021), https://www.justice.gov/opa/pr/hospital-pharmacist-plead-guilty-attempting-spoil-hundreds-covid-vaccine-doses#:~:text=January%2026%2C%202021-,Hospital%20Pharmacist%20to%20Plead%20Guilty%20to%20Attempting%20to%20Spoil%20Hundreds,of%20COVID%2D19%20vaccine%20ineffective [https://perma.cc/6D9K-ZSUU].

[8] Molly Gamble, Skip Line for COVID-19 Vaccine and Lose Your License, California Governor Warns Healthcare Providers, Becker’s Hosp. Rev. (Dec. 29, 2020), https://www.beckershospitalreview.com/legal-regulatory-issues/skip-line-for-covid-19-vaccine-and-lose-your-license-california-governor-warns-healthcare-providers.html [https://perma.cc/YVX7-DFP7].

[9] Noah Higgins-Dunn, New York Gov. Cuomo to Propose Law Making It a Crime to Skip the Line for Covid Vaccine, CNBC (Jan. 4, 2021, 12:56 PM), https://www.cnbc.com/2021/01/04/covid-vaccine-ny-gov-cuomo-to-propose-law-making-it-a-crime-to-skip-the-line-for-shots.html [https://perma.cc/KV3Q-57R8].

[10] See, e.g., Reid Wilson, Hospitals Boost Security, Seek to Stop Vaccine ‘Line-Jumping’, The Hill (Dec. 17, 2020), https://thehill.com/policy/healthcare/530658-hospitals-boost-security-seek-to-stop-vaccine-line-jumping [https://perma.cc/EK5C-Y3Z2].

[11] FDA Takes Additional Action in Fight Against COVID-19 by Issuing Emergency Use Authorization for Second COVID-19 Vaccine, FDA (Dec. 18, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-additional-action-fight-against-covid-19-issuing-emergency-use-authorization-second-covid [https://perma.cc/5UBW-H9CW].

[12] COVID-19 Vaccine Distribution, HHS.gov, https://www.hhs.gov/coronavirus/covid-19-vaccines/distribution/index.html [https://perma.cc/F2JF-3JV9].

[13] See, e.g., Minn. Dep’t of Health, Minn. Guidance for Allocating & Prioritizing COVID-19 Vaccine – Phase 1a (2021), https://www.health.state.mn.us/diseases/coronavirus/vaccine/phase1aguide.pdf [https://perma.cc/WUF6-FP4N].

[14] See When Vaccine is Limited, Who Should Get Vaccinated First? CDC (Jan. 8, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations.html [https://perma.cc/U8PJ-UVSK].  

[15] Amanda Milkovits, Hundreds Have Tried to Cut to the Front of the COVID-19 Vaccine Line in R.I., Bos. Globe (Jan. 7, 2021), https://www.bostonglobe.com/2021/01/05/metro/hundreds-have-tried-cut-front-covid-19-vaccine-line/ [https://perma.cc/B95N-AB8X] (“[H]ealth officials realized that a special link given to employers for their workers to register for vaccinations was shared with others.”).

[16] See Goldstein, supra note 3.

[17] Apoorva Mandavilli, At Elite Medical Centers, Even Workers Who Don’t Qualify Are Vaccinated, N.Y. Times (Jan. 10, 2021), https://www.nytimes.com/2021/01/10/health/coronavirus-hospitals-vaccinations.html?action=click&module=Top%20Stories&pgtype=Homepage [https://perma.cc/4UJD-MJX3] (reporting that hospitals are using the vaccines they store to inoculate lower-risk employees instead of returning the vaccines to health departments).

[18] U.S. Const. art. I, § 8, cl. 1.

[19] See South Dakota v. Dole, 483 U.S. 203, 206–09 (1987) (describing Congress’s power to “attach conditions on the receipt of federal funds,” and its limitations).

[20] Nat’l Fed’n Indep. Bus. v. Sebelius, 567 U.S. 519, 579–83 (2012) (comparing the Affordable Care Act’s Medicaid expansion requirement with raising the drinking age in Dole and concluding the Medicaid expansion requirement was unconstitutionally coercive).

[21] See Dan Barry, The Vaccine Had to Be Used. He Used It. He Was Fired., N.Y. Times (Feb. 12, 2011), https://www.nytimes.com/2021/02/10/us/houston-doctor-fired-covid-vaccine.html [https://perma.cc/29LU-9Q5U].

[22] Congress’s plenary power to regulate interstate commerce, established in Gibbons v. Ogden, permits it to promote and prohibit certain interstate commerce. Prudential Ins. v. Benjamin, 328 U.S. 408, 423, 434 (1946).

[23] Jane Musgrave & John Pacenti, Vaccine Tourism? Florida Could Be the Hotspot, The Palm Beach Post (Jan. 9, 2021), https://www.palmbeachpost.com/story/news/2021/01/08/covid-vaccine-tourism-florida-could-hotspot/6579880002/ [https://perma.cc/6996-GCGZ] (reporting that executives and benefactors can fly to Florida for a vaccine, while local residents wait in line).

[24] See 8 U.S.C. § 1201, subdiv. i (“After the issuance of a visa . . . the consular officer . . . may at any time, in his discretion, revoke such visa.”); 22 C.F.R. § 41.122, subdiv. a.

[25] See Alice Miranda Ollstein & Rachel Roubein, Few Guardrails to Keep People from Cutting in Line for Covid Shots, Politico (Dec. 18, 2020, 4:30 AM), https://www.politico.com/news/2020/12/18/cutting-in-line-covid-vaccine-448048 [https://perma.cc/K9ZM-L223] (“[P]ublic health officials say that with thousands of people dying each day from the virus, it’s better to have a few line jumpers than to impose restrictions that slow down the vaccination process.”).

[26] Kwame Anthony Appiah, The Ethicist: I Might Be Able to Jump the Vaccine Line. Should I? N.Y. Times (Dec. 29, 2020), https://www.nytimes.com/2020/12/29/magazine/covid-vaccine-ethics.html [https://perma.cc/P9WG-SZQ8].

[27] Nelson & Lau, supra note 4.

[28] Udi Ofer, 50 Years into the War on Drugs, Biden-Harris Can Fix the Harm It Created, ACLU (Jan. 6, 2021), https://www.aclu.org/news/criminal-law-reform/50-years-into-the-war-on-drugs-biden-harris-can-fix-the-harm-it-created/ [https://perma.cc/WV8S-7W6S]; See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

[29] See Nina Feldman, Black Doctors Consortium Wants Vaccine Line-Jumpers to Wait Their Turn, WHYY (Feb. 10, 2021), https://whyy.org/articles/black-doctors-consortium-wants-vaccine-line-jumpers-to-wait-their-turn/ [https://perma.cc/A5BL-R6HH]; Abby Goodnough & Jan Hoffman, The Wealthy Are Getting More Vaccinations, Even in Poorer Neighborhoods, N.Y. Times (Feb. 4, 2021), https://www.nytimes.com/2021/02/02/health/white-people-covid-vaccines-minorities.html [https://perma.cc/2K5E-JCJH].