Biden Administration’s COVID-19 Vaccine Mandate for Travel Is Illegal, Should Be Struck Down: Lawsuit

A person receives a COVID-19 vaccine at Los Angeles International Airport in Los Angeles, Calif., on Dec. 22, 2021. (Frederic J. Brown/AFP via Getty Images)

The Biden administration’s requirement that foreign travelers get a COVID-19 vaccine is illegal and should be blocked, according to a new lawsuit.

President Joe Biden in 2021 issued a proclamation suspending the entry of unvaccinated noncitizen nonimmigrants into the United States by air. The U.S. Centers for Disease Control and Prevention (CDC) then issued an order that detailed the mandate.

Gerard Van Den Bosch, a citizen of the Netherlands, works and lives in the United States. He received a work visa in 2019 and is an engineer for VMI Holland in Tennessee.

Bosch’s religious beliefs preclude him from taking a COVID-19 vaccine, according to the suit. “Taking a vaccine is because of fear of what might happen to me and therefore is a lack of faith in God,” Bosch said in a declaration. Additionally, Bosch enjoys post-infection immunity, which is similar to or even better than the protection from vaccination.

Bosch booked a flight to the Netherlands set to depart on March 17 and return to the United States on March 29. He planned to conduct business in his home country and see his aging parents. But he did not end up going because the U.S. government did not provide an official response to his request for a religious exemption to the mandate, documents filed in court show.

Bosch is asking the federal court to block the mandate, arguing it violates the Religious Freedom Restoration Act (RFRA) and the U.S. Constitution’s First Amendment. He has booked another round-trip flight that is slated to leave the United States on May 24.

Exceptions Only Secular

The CDC lists exceptions to its mandate, including for noncitizens who must travel to the United States for a legal obligation.

But the agency also says that there are “no exceptions ... for religious reasons or other moral convictions.”

That means the mandate “violates plaintiff’s rights under RFRA,” the suit states.

The act prohibits the government from “substantially burdening a person’s exercise of religion” unless the government can show the burden “furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”

The mandate does not further an interest, though, because the COVID-19 vaccines do not prevent transmission or infection, Bosch’s filing notes.

The CDC itself said in a 2022 update that its COVID-19 prevention recommendations “no longer differentiate based on a person’s vaccination status because breakthrough infections occur, though they are generally mild, and persons who have had COVID-19 but are not vaccinated have some degree of protection against severe illness from their previous infection.”

“CDC guidance now directly contradicts the rationales and implicit justifications for the Travel Ban,” the suit says.

As further evidence that the mandate is unjustified, the fact that the overwhelming majority of other countries, including Canada and all European countries, do not have similar requirements was offered.

“The United States is amongst the handful of remaining countries that maintain travel restrictions based on vaccination status, a very short list of countries that includes some of the most repressive governments in the world,” the filing states.

“There are countless options the Government could have utilized that constitute less restrictive means to avoid the conflict with Plaintiff’s free exercise rights. However, instead of instituting a policy with the requisite precision to avoid conflict with non-citizens residing in the United States who hold religious objections to compulsory vaccination—like Plaintiff—Defendants deployed a blunt hammer and, in one stroke, obliterated every possibility for religious observance,” it added.

Bosch, represented by lawyers with Siri & Glimstad and Glassman, Wyatt, Tuttle, & Cox, wants the court to enter a preliminary injunction blocking the government from enforcing the mandate against him as the case is dealt with.

He is also seeking class certification, which would broaden the case to include all people who are impacted by the ban on unvaccinated travel.

The CDC declined to comment. The White House and the Department of Homeland Security (DHS) did not respond to requests for comment.

Uncertain Future

Because the mandate stems from a presidential proclamation, the future is uncertain.

Officials have not said when it will end, or whether it will end, spurning or not answering questions on the matter.

A separate mandate, for entry at U.S. land ports of entry and from DHS, was based on Biden’s COVID-19 national emergency declaration.

Biden on Monday signed a bill immediately ending the declaration, while a similar public health declaration is due to end on May 11.

DHS and Customs and Border Protection, a CBP office that issued the mandate, did not return inquiries.

“DHS anticipates lifting the requirements imposed under this notification no later than when Presidential Proclamation 10294 is revoked,” the agency said when the mandate was issued.

The Biden administration had said that it was winding down the emergencies, as opposed to ending them immediately, because “an abrupt end to the emergency declarations would create wide-ranging chaos and uncertainty throughout the health care system.”

The declarations originated during former President Donald Trump’s administration. COVID-19 first appeared in China in 2019.