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Arizona AG takes on Biden administration over vaccine mandate

Arizona and its Attorney General Mark Brnovich sued President Joe Biden on Tuesday, claiming the president’s Covid-19 vaccine mandate for large employers discriminates against U.S citizens because the vaccine is not mandated for immigrants who enter the country illegally.

“The Executive Branch has adopted an unconstitutional policy of favoring aliens that have unlawfully entered the United States over actual U.S. citizens, both native and foreign born, with the inalienable right to live here,” Brnovich argues in the 15-page complaint.

The mandate, which the Biden administration will enact through Occupational Safety and Health Administration rules, will force companies with more than 100 employees to mandate vaccines for employees.

The policy — which is not yet in effect — is an attack on federalism and is likely to be hit with more lawsuits, including from Arizona and ones Arizona will join, Brnovich said in a news conference announcing the lawsuit.

“Stay tuned. Our lawsuit right here is the first salvo in pushing back against the federal government’s vaccine mandates, and it will not be the last salvo,” said the attorney general, who is a candidate to unseat Democratic U.S. Senator Mark Kelly.

Arizona will likely challenge the expected OSHA rules mandating vaccines, Brnovich said.  

Calling the mandate a “heavy-handed attempt” that shows the federal government at its worst, the attorney general highlighted his belief that the mandate represents federal overreach and a trampling of state’s rights.

“Public health, safety, welfare were left to the states,” Brnovich said. “I think the president’s actions over the last eight months and especially this executive order relating to vaccine mandates indicate that his administration is undermining federalism and undermining the laboratories of democracy.”

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The attorney general demurred when asked whether the federal government has the authority to impose safety mandates like helmets and breathing masks for some workers. Lawsuits challenging the OSHA rules will come later, he said.

“This is just the first of many lawsuits to come,” he said.

Last week, Brnovich released an analysis of an employee vaccine mandate for the city of Tucson, which employs about 5,000 people. That mandate, which also isn’t in effect yet, would suspend employees who aren't vaccinated. After the attorney general deemed the policy a violation of a state law and an executive order from Governor Doug Ducey, the city paused it.

“The good news is that our decision had the intended effect. The city of Tucson has to follow state law and cannot require any employees to be vaccinated,” Brnovich said Tuesday.

If the city doesn’t change the policy within 30 days, the state treasurer will withhold “millions of dollars” from Tucson’s share of state-shared revenue, Brnovich has said after a 30-day investigation by his office.

The City Council is scheduled to discuss the policy Tuesday afternoon.

Arizona, home to 7.4 million people, has seen just over 1 million Covid-19 cases and 19,304 deaths, including 117 new ones Monday, the state Department of Health Services reported on its website. About 57% of Arizonans are vaccinated, with rates varying widely from 76% in Santa Cruz County on the Mexican border to 27% in rural Apache County in northeast Arizona, the state reported.

The U.S. Department of Justice did not respond to a request for comment on Arizona's lawsuit by press time.

Defendants in the lawsuit include Biden, Homeland Security Secretary Alejandro Mayorkas, U.S. Customs and Border Protection Commissioner Troy Miller, and U.S. Immigration and Customs Enforcement Director Tae Johnson of U.S. Immigration and Customs Enforcement.

The state wants a federal judge to declare it unconstitutional to have differing vaccine policies for unauthorized aliens and U.S. citizens or lawful residents.

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