After filing the first lawsuit in the country to stop President Joe Biden’s COVID-19 vaccine mandate for businesses with over 100 employees, federal employees and federal contractors, Arizona Attorney General Mark Brnovich is now amending it to request a temporary restraining order and nationwide preliminary injunction. He cites a lengthy list of problems with the mandate, beginning the 54-page brief by saying, “This case presents circumstances that would have been unthinkable to our Founding Fathers.”
In a statement, Brnovich declared, “Once a vaccine has been administered, it can never be undone. The COVID-19 vaccine mandate is one of the greatest infringements upon individual liberty, federalism, and the separation of powers by any administration in our country’s history.”
Filed in federal district court, he explained the need for the rush. “The deadline for federal contractors to receive their first vaccine is approaching as early as Oct. 27, 2021, so time is of the essence,” the complaint says. “The deadline for federal employees to receive their first Pfizer or Moderna vaccine has already passed, but the November 8 deadline for them to receive their second dose (or their first and only dose of the Johnson & Johnson vaccine) is just weeks away.”
He addresses the fact none of the vaccines subject to the mandate have been fully approved by the FDA. The three approved ones — by Pfizer, Moderna and Johnson & Johnson — have only been approved for emergency use. The version from Pfizer that received full approval by the FDA isn’t being distributed in the U.S.
Brnovich, who is running for U.S. Senate against Democrat Mark Kelly, cites the mass resignations taking place over the mandate, hurting business. “A leading trade publication covering the construction industry has predicted more than 40% of employees ‘…will quit and go to work for another contractor that does not have such a mandate.’” Although Biden’s rule regarding businesses with 100 or more employees has not yet been codified into law, many companies are already implementing it.
He notes that in his original complaint, he argued that it violates the Equal Protection Clause, since migrants are not required to get the vaccine like American workers. This is a significant number of people, considering during Trump’s last full month in office, the Border Patrol released only 17 migrants. Whereas “recently leaked internal DHS documents reveal that at least 160,000 migrants illegally entering the United States have been granted parole by the Biden Administration since March 2021.”
According to recent figures, more than 18 percent of migrants who crossed the border tested positive for COVID-19 before release, as well as 20 percent of unaccompanied minors. Around 30 percent decline the vaccine.
Brnovich says the mandates will fail to hold up in court, pointing out that Biden’s own Chief of Staff retweeted a statement that the mandate was done by Occupational Safety and Health Administration as a workaround since the federal government did not have the authority to mandate it. Ronald Klain retweeted MSNBC anchor Stephanie Ruhle, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” The tweets have since been deleted.
Brnovich emphasized federalism under the Tenth Amendment in his brief, citing Arizona’s authority to make its own laws. A.R.S. 36-681(A)(1) prohibits vaccine mandates in Arizona, and A.R.S. 23-206 requires an exemption for religious beliefs. The city of Tucson has tangled with Brnovich over its vaccine mandate. He also said the mandates violate the right to due process, bodily integrity, and to refuse medical treatment under the Fifth Amendment.
A few courts have struck down vaccine mandates around the country. Last week, the Texas Supreme Court temporarily blocked San Antonio’s school district from enforcing a COVID-19 vaccine mandate for employees while the state pursues a challenge to the policy. In September, a federal judge temporarily blocked the state of New York on Tuesday from forcing medical workers to be vaccinated after a group of health care workers sued, saying their Constitutional rights were violated because the state’s mandate disallowed religious exemptions.
The late summer slight surge of COVID-19 in Arizona has begun trending down, with only 1,991 cases documented on October 20. This is far lower than the surge over winter, which reached 17,234 cases on January 3. Deaths are also declining, with 51 on October 22, down from 335 on January 12.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
