Arizona Attorney General Mark Brnovich, who was the first person in the country to sue the Biden administration over its COVID-19 vaccine mandates, is now co-leading another lawsuit with 11 other attorneys general over another aspect of the mandates. This new lawsuit challenges the mandate for private businesses with over 100 employees.
His first lawsuit, filed on September 14, primarily challenged the mandate’s applicability to federal employees and contractors. Brnovich and 23 other attorneys general next warned the Biden administration in a letter on September 16 that a new lawsuit was coming if the mandate wasn’t reversed. On October 22, Brnovich filed a request for an emergency temporary restraining order to stop the mandate from going into effect.
Brnovich, who is running for the U.S. Senate against Democrat Mark Kelly, told The Arizona Sun Times, “This is all about federal control. And doing something they have no power to do. It’s a terrible precedent. I’m not anti-anything. I’m just pro-Constitution and for individual liberty.”
In a statement he released with the lawsuit, he said, “The federal government cannot force people to get the COVID-19 vaccine. The Biden Administration is once again flouting our laws and precedents to push their radical agenda. There can be no serious or scientific discussion about containing the spread of COVID-19 that doesn’t begin at our southern border.”
His earlier lawsuit argued that the executive order violates the Fourteenth Amendment’s Equal Protection Clause by requiring Americans to get the vaccine, but not illegal immigrants who come into America. The Biden administration currently allows illegal immigrants to decline the vaccine.
The new lawsuit points out that the Biden administration stated on July 23 that mandating vaccines “is not the role of the federal government.” Yet less than two months later, on September 9, President Joe Biden announced the mandates. Two months later, on November 5, the mandates were put in writing by the Occupational Safety and Health Administration, whose rules Biden used to justify as authority to issue the mandate. OSHA stated that the private business mandate covers “two-thirds of all private-sector workers in the nation.”
The attorneys general cite U.S. Supreme Court caselaw, observing that for over a century, the nation’s highest court “has recognized that policies on compulsory vaccination lie within the police powers of the States, and that ‘[t]hey are matters that do not normally concern the national government.’” (Jacobson v. Massachusetts)
The lawsuit goes over numerous reasons why OSHA does not have the authority to issue the mandates. Its justification is not supported by evidence, it did not first discern a “grave danger” to employees, and its rationalization for the mandate was made up afterwards. The attorneys general point out, “It is a ‘foundational principle of administrative law’ to reject such impermissible post hoc rationalizations,’” citing Department of Homeland Security v. Regents of the University of California.
A source inside the Arizona Attorney General’s Office who preferred not to be identified told The Times that the lawsuits against the Biden administration were deliberately filed separately. The intent was to get Biden’s lawyers to respond and show their cards in the first lawsuit, so Brnovich would know their strategy when he filed the second lawsuit and any others that may become necessary.
In September, while speaking to a group of Republicans, Brnovich said, “Kamala Harris said she wouldn’t get the vaccine if Trump told her to. We were told no masks, then we have to mask. That the vaccine was 90 percent effective, now we know it’s only 40 percent and they want you to get a booster. And everything has side effects, even aspirin, but you get banned from social media if you discuss side effects. I understand why people are reluctant to get the vaccine, because if you can still get it and give it, what’s the point?”
Brnovich was interviewed recently by Turning Point founder and leader Charlie Kirk about COVID-19 vaccine mandates, where he expressed his skepticism. “We’re told that the vaccine’s 90 percent effective, then we’re told it’s 40 percent effective,” he told Kirk. “We’re now told every three months that, oh, there’s a new variant. There’s this new booster.”
In September, Brnovich issued a legal opinion determining that the city of Tucson’s vaccine mandate for employees was illegal. Breakthrough cases are now surging in Arizona, reaching almost 50,000. Brnovich’s first lawsuit will be heard in federal court on November 10.
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