Attorney General Mark Brnovich Challenges Biden’s COVID-19 Vaccine Mandate for Private Companies

PHOENIX -- Attorney General Mark Brnovich is co-leading a multistate coalition of 11 states in a lawsuit against the Biden Administration and federal officials to stop their COVID-19 vaccine mandate on private employers with more than 100 employees. The coalition is the first state challenge against the requirements on private employers. A Petition for Judicial Review was filed in the United States Eighth Circuit Court of Appeals earlier this morning, and a Motion for Stay is expected to be filed early next week.

“Today is the first step in stopping the Biden Administration’s misguided COVID-19 vaccine mandate for employees of small businesses,” said Arizona Attorney General Mark Brnovich. “I am urging the court to move expeditiously to defend the fundamental rights of all Americans.”

The lawsuit, which was filed in the United States Court of Appeals for the Eighth Circuit earlier this morning, challenges the Emergency Temporary Standard propagated by the Occupational Safety and Health Administration (OSHA), which requires private employers with 100 or more employees to mandate their employees to get vaccinated or implement weekly testing and mask requirements. Non-compliant businesses would face steep fines.

The petition explains: “This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue this mandate, which is shoe-horned into statutes that govern workplace safety and was never intended to federalize public-health policy.”

The petition also states, “For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that ‘they are matters that do not ordinarily concern the national government.’ Until recently, the Biden Administration agreed. The White House stated on July 23rd of this year that mandating vaccines is ‘not the role of the federal government.’ But on September 9, 2021, that position underwent a dramatic reversal. The President announced several sweeping COVID-19 vaccine mandates, including a vaccine mandate to be issued by OSHA that applies to all employers who employ more than 100 employees. OSHA published this ‘emergency’ mandate two months later, crafting an elaborate post hoc justification for a policy that the President had already dictated that it would impose.”

The full petition can be found here.
Motion for expedited consideration of stay motion here.
Fifth Circuit stay order here.

In addition to Arizona, attorneys general from Missouri, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming also joined the challenge.

Additional AGO Actions: 
Additionally, General Brnovich filed the first lawsuit in the country against the Biden Administration’s COVID-19 vaccine mandate for federal employees and federal contractors. General Brnovich is asking the court to grant a temporary restraining order to halt the mandates from going into place. A hearing is scheduled for next Wednesday morning. Read more here.