PHOENIX - Arizona Attorney General Mark Brnovich has filed a lawsuit to challenge President Joe Biden's COVID-19 vaccine mandate for businesses with more than 100 employees.
During a conference call with reporters, Brnovich says President Biden's mandate is "unconstitutional," and this is the first lawsuit filed in the country against the mandate.
"There can be no serious or scientific discussion about containing the spread of COVID-19 that doesn’t begin at our southern border. Under our constitution, the President is not a king who can exercise this sort of unbridled power unilaterally," Brnovich tweeted on Sept. 14.
Brnovich, who is running in a crowded Republican primary for U.S. Senate, claims Biden is illegally treating U.S. citizens and legal immigrants differently from people caught crossing the border illegally, who are offered vaccines but not required to accept them.
According to the AGO, they are arguing that Biden's vaccine mandate violates the Equal Protection Clause by favoring migrants that have crossed into the country illegally over legal U.S. citizens.
"The Biden Administration allows migrants to decline the vaccine, protecting their freedom and bodily autonomy more than American citizens," read a portion of the AGO's statement.
In the AGO's complaint, they're asking the District Court of Arizona to declare the Biden Administration's vaccine and testing policies unconstitutional and to return the power of healthcare decisions back to citizens.
Health expert speaks out
Following Brnovich's announcement, health expert Will Humble spoke out about the reason behind the vaccine mandate.
"The reason it’s necessary is because our vaccine levels are inadequate, and there’s a lot of people that need a nudge, and this is gonna work," said Humble.
Humble, who is the Executive Director of the Arizona Public Health Association, said Brnovich's lawsuit has no teeth, as OSHA has yet to issue an emergency, temporary standard on the new mandate.
""This lawsuit is not about the OSHA rules it is about a fundamental question about whether the President has this kind of general authority," said Brnovich.
Brnovich’s lawsuit is the first of many expected challenges to Biden’s proposed vaccine rules. But while many details about the rules remain unknown, Biden appears to be on firm legal ground to issue the directive in the name of protecting employee safety, according to several experts interviewed by The Associated Press. Picking fights with the Biden administration could help Brnovich as he faces well-funded opponents in a tough primary to challenge Democratic U.S. Sen. Mark Kelly, one of the GOP’s top pickup targets in 2022.
Brnovich filed his lawsuit in U.S. District Court in Phoenix. The White House did not immediately comment.
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Ducey: Arizona must push back against Biden vaccine mandate
President Joe Biden is overreaching with his new requirement for employees of large businesses to be vaccinated or regularly tested for COVID-19, Arizona Gov. Doug Ducey said on Sept. 9.
The Republican governor said Arizona will fight back but repeatedly declined to say on how the state would respond.
"This requires pushback and response, and that’s what the state of Arizona is going to do," Ducey told reporters after speaking at the opening of a sportsbook in downtown Phoenix. "There’s more to follow on what that’s going to be."
Ducey has encouraged people to get vaccinated. But he has worked aggressively to block mandates of all kinds, including for vaccines and face coverings, drawing intense criticism from some public health and school officials.
He signed a law prohibiting schools from requiring masks, which doesn’t take effect until later this month, and he said schools that require masks are not eligible for one pot of federal coronavirus relief funds that he controls.
Biden ordered sweeping new federal vaccine requirements for as many as 100 million Americans in an all-out effort to increase COVID-19 vaccinations and curb the surging delta variant. The rules mandate that all employers with more than 100 workers require them to be vaccinated or test for the virus weekly. Workers at health facilities that receive federal Medicare or Medicaid funding also will have to be fully vaccinated, as will federal employees and contractors.
Ducey said the rule will lead people to quit their jobs, leaving businesses and schools in a lurch.
"We need more people to get vaccinated," Ducey said. "This is not the way to get it done."
Arizona on reported nearly 2,500 additional confirmed COVID-19 cases on Sept. 9 as virus-related hospitalizations remained over 2,000 for the 10th straight day.
The additional 2,480 confirmed cases and 62 deaths reported increased the pandemic totals to 1,039,492 cases and 19,141 deaths, according to the state’s coronavirus dashboard.
The dashboard also reported that 2,071 virus patients occupied hospital beds as of Wednesday. The state’s virus-related hospitalizations peaked at 5,082 on Jan. 11 during the winter surge.
Citing staff shortages, hospitals have said they are stressed by the recent influx of virus cases and that it’s difficult to treat all patients needing treatment for other medical reasons.
According to Johns Hopkins University data, the state’s seven-day rolling averages of daily new cases rose over the past two weeks from 2,626 on Aug. 24 to 2,907 on Sept. 7.
The average of daily deaths rose from 19.1 to 32.3 during the same period.
Biden announces vaccine mandate for employers with more than 100 workers
In his most forceful pandemic actions and words, President Joe Biden announced sweeping new federal vaccine requirements affecting as many as 100 million Americans in an all-out effort to increase COVID-19 vaccinations and curb the surging delta variant.
Speaking at the White House on Sept. 9, Biden sharply criticized the roughly 80 million Americans who are not yet vaccinated, despite months of availability and incentives.
"We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us," he said, all but biting off his words. The unvaccinated minority "can cause a lot of damage, and they are."
The expansive rules mandate that all employers with more than 100 workers require them to be vaccinated or test for the virus weekly, affecting about 80 million Americans. And the roughly 17 million workers at health facilities that receive federal Medicare or Medicaid also will have to be fully vaccinated.
Biden is also signing an executive order to require vaccination for employees of the executive branch and contractors who do business with the federal government — with no option to test out. That covers several million more workers.
Biden announced the new requirements in an afternoon address from the White House as part of a new "action plan" to address the latest rise in coronavirus cases and the stagnating pace of COVID-19 shots that has raised doubts among the public over his handling of the pandemic.
Just two months ago Biden prematurely declared the nation’s "independence" from the virus. Now, despite more than 208 million Americans having at least one dose of the vaccines, the U.S. is seeing about 300% more new COVID-19 infections a day, about two-and-a-half times more hospitalizations, and nearly twice the number of deaths compared to the same time last year.
"We are in the tough stretch and it could last for a while," Biden said of the current state of the pandemic.
After months of using promotions to drive the vaccination rate, Biden is taking a much firmer hand, as he aides blamed people who have not yet received shots for the sharp rise in cases that is killing more than 1,000 people per day and imperiling a fragile economic rebound.
In addition to the vaccination requirements, Biden moved to double federal fines for airline passengers who refuse to wear masks on flights or to maintain face covering requirements on federal property in accordance with Centers for Disease Control and Prevention guidelines.
Biden announced that the federal government will work to increase the supply of virus tests, and that the White House has secured concessions from retailers including Walmart, Amazon, and Kroger to sell at-home testing kits at cost beginning this week.
The administration was also sending additional federal support to assist schools in safely operating, including additional funding for testing. And Biden will call for large entertainment venues and arenas to require vaccinations or proof of a negative test for entry.
The requirement for large companies to mandate vaccinations or weekly testing for employees will be enacted through a forthcoming rule from the Occupational Safety and Health Administration that carries penalties of $14,000 per violation, an administration official said. The White House did not immediately say when it would take effect, but said workers would have sufficient time to get vaccinated.
The rule would also require that large companies provide paid time off for vaccination.
Meanwhile, the Centers for Medicare & Medicaid Services will extend a vaccination requirement issued earlier this summer — for nursing home staff — to other healthcare settings including hospitals, home-health agencies and dialysis centers.
Separately, the Department of Health and Human Services will require vaccinations in Head Start Programs, as well as schools run by the Department of Defense and Bureau of Indian Education, affecting about 300,000 employees.
Biden's order for executive branch workers and contractors includes exceptions for workers seeking religious or medical exemptions from vaccination, according to Psaki. Federal workers and contractors will have 75 days to get fully vaccinated. Workers who don't comply will be referred to their agencies' human resources departments for counseling and discipline, to include potential termination.
"We would like to be a model" to other organizations and business around country, Psaki said of the federal workforce.
An AP-NORC poll conducted in August found 55% of Americans in favor of requiring government workers to be fully vaccinated, compared with 21% opposed. Similar majorities also backed vaccine mandates for health care workers, teachers working at K-12 schools and workers who interact with the public, as at restaurants and stores.
Biden has encouraged COVID-19 vaccine requirements in settings like schools, workplaces and university campuses, and the White House hopes the strengthened federal mandate will inspire more businesses to follow suit. On Thursday, the Los Angeles Board of Education was expected to vote on requiring all students 12 and older to be fully vaccinated in the the nation’s second-largest school district.
Walmart, the nation’s largest private employer, said in late July it was requiring that all workers at its headquarters in Bentonville, Arkansas, as well as its managers who travel within the U.S. be vaccinated against COVID-19 by Oct. 4. But the company stopped short of requiring shots for its frontline workers.
CVS Health said in late August it would require certain employees who interact with patients to be fully vaccinated by the end of October. That includes nurses, care managers and pharmacists.
In the government, several federal agencies have previously announced vaccine requirements for much of their staffs, particularly those in healthcare roles like the Department of Veterans Affairs, and the Pentagon moved last month to require all servicemembers to get vaccinated. Combined, the White House estimates those requirements cover 2.5 million Americans. Thursday's order is expected to impact nearly 2 million more federal workers and potentially millions of contractors.
Biden’s measures should help, but what’s really needed is a change in mindset for many people, said Dr. Joshua Sharfstein, vice dean at the Johns Hopkins Bloomberg School of Public Health in Baltimore.
"There is an aspect to this now that has to do with our country being so divided," said Sharfstein. "This has become so politicized that people can’t see the value of a vaccination that can save their lives. Our own divisions are preventing us from ending a pandemic."
American Federation of Government Employees, the largest union of federal employees, said that while it strongly encourages vaccinations, workers should have a say in new mandates affecting them.
"Put simply, workers deserve a voice in their working conditions," said national President Everett Kelley. "We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so."
Larry Cosme, president of the Federal Law Enforcement Officers Association, called the mandate for federal workers "ill conceived," saying, "Vaccination should be promoted through education and encouragement – not coercion."
More than 177 million Americans are fully vaccinated against the coronavirus, but confirmed cases have shot up in recent weeks to an average of about 140,000 per day with on average about 1,000 deaths, according to data from the Centers for Disease Control and Prevention.
Most of the spread — and the vast majority of severe illness and death — is occurring among those not yet fully vaccinated. So-called breakthrough infections in vaccinated people occur, but tend to be far less dangerous.
Federal officials are moving ahead with plans to begin administering booster shots of the mRNA vaccines to bolster protection against the more transmissible delta variant. Last month Biden announced plans to make them available beginning on Sept. 20, but only the Pfizer vaccine will likely have received regulatory approval for a third dose by that time.
Officials are aiming to administer the booster shots about eight months after the second dose of the two-dose vaccines.
The Associated Press contributed to this report.
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