PHOENIX — Attorney General Mark Brnovich has filed a lawsuit in a bid to block the Biden administration from imposing a vaccine mandate on workers.
Brnovich contends that the move is illegal. Questions of health, safety and welfare are left to the state, he said Tuesday in announcing his legal challenge.
“The president has no authority under the constitution to even attempt to issue any rules that would require a vaccine,” he said.
But while Brnovich lashes out at the president, he also appears to be setting the stage to challenge the power that Congress has given the federal Occupational Safety and Health Administration to ensure that employees nationwide have safe places to work.
It is not Biden who is issuing an edict that workers of companies of 100 or more either be vaccinated or be tested at least weekly for COVID-19. Instead, the president is directing OSHA to promulgate rules to protect workers against infection.
Attorneys recently interviewed by Capitol Media Services all said that vaccination requirements appear to be within OSHA’s powers. But Brnovich appears unconvinced.
“Stay tuned for the next lawsuit,” he said Tuesday. “I do think there are some serious questions as it relates to ... the ability of OSHA to promulgate certain rules.”
Brnovich sidestepped the question of whether, based on his arguments of the rights of states, that would mean Arizona employers are free to ignore other OSHA regulations, like helmets for worksites and masks to protect workers against hazardous fumes.
“When you talk about OSHA rules, you’re talking about congressional statutes and how those are implemented,” he said. “That’s a little bit of a different constitutional question.”
The attorney general, who is running for U.S. Senate, also is attempting to link this issue with his ongoing spat with the Biden administration over what he claims is the refusal to enforce immigration laws.
“Specifically, the Biden administration has disclaimed any COVID-19 vaccination requirements for unauthorized aliens, even those being released directly into the United States,” his lawsuit states. “Instead, the Biden administration has announced multiple, unprecedented federal mandates requiring U.S. citizens to be vaccinated against COVID-19, upon pain of losing their jobs or their livelihood.”
That, Brnovich contends, violates equal protection provisions of the Constitution.
The fact that this is about immigration is underlined by Brnovich naming not just the president as a defendant in his lawsuit but also various officials of the Department of Homeland Security, none of whom have anything to do with vaccine requirements.
It does not name OSHA or its officials, with Brnovich acknowledging there is nothing to challenge as no actual rule has yet been proposed.
This isn’t Brnovich’s first fight over immigration with the Democratic president. But various other lawsuits he has filed over everything from rules about who can be admitted to enforcing regulations about prompt deportation of those not here legally have been thrown out by federal judges.
In announcing the latest litigation, Brnovich said this is all about constitutional principles.
“This is a heavy-handed attempt by the federal government that shows government at its worst, not its best,” he said. Brnovich said that Biden is attempting to impose something on the American people that is not within the rights he is granted under the Constitution.
“His administration is undermining federalism and undermining the 50 laboratories of democracy,” he continued. “It’s a power grab that has never been attempted by any administration in the history of our republic.”
There is a 1905 U.S. Supreme Court case which upheld the power of states to enforce vaccine requirements on citizens. In that case, the justices concluded that the view of individual liberty is not absolute and is subject to the police power of the state.
Brnovich said that buttresses his argument that concept of questions of health and welfare being left to the individual power of the states.
Federalism aside, he said, the penalty for refusal amounted to a $5 fine, the equivalent of $150 today.
“And so I would submit to you the notion that the federal government is going to force people to lose their jobs, fine businesses $14,000 and destroy someone’s livelihood is a lot different than paying a $5 fine.”
The White House has defended the mandate, and not only based on the power of OSHA to issue rules to protect employees from being infected by co-workers who may not be vaccinated. The president has lashed out at those who refuse to get inoculated, saying they are endangering the health of others, including those who cannot get vaccinated like children younger than 12.
Brnovich, in not waiting until OSHA actually proposed a rule, may have been in a rush to be the first to get into federal court. Republican governors and attorneys generals of other states already have made statements that they intend to sue.
The announcement comes on the heels of Brnovich concluding that a Tucson ordinance requiring its workers to be vaccinated or suspended without pay is illegal. He contends that it violates a law approved earlier this year by the Legislature, even though that provision actually has yet to take effect.