Brnovich calls lawsuit ‘first torpedo’ in fight against Biden’s vaccine plan

PHOENIX – Arizona Attorney General Mark Brnovich called his lawsuit against President Joe Biden’s COVID-19 vaccine plan “the first torpedo” in what could be a multistate attack against the policy.

“I would just say this is the opening salvo in what I think is a very, very important battle on not only public health but on federalism and the size and the scope of the federal government,” Brnovich told KTAR News 92.3 FM’s The Mike Broomhead Show on Wednesday.

Biden announced last week that employees at large businesses would be required to be fully vaccinated or take weekly COVID-19 tests as part of a new action plan to address the latest rise in cases and the stagnating pace of shots.

The rules Brnovich is challenging, which would impact 80 million workers, don’t exist yet. The Occupational Safety and Health Administration, the federal agency that polices workplace safety, has been directed to write them.

Brnovich, a Republican running for a U.S. Senate seat in 2022, said it wasn’t too soon to begin the legal challenges.

“I do think … that as soon as the administration tries to promulgate any rules, you will see additional lawsuits. And I know that I’ve talked to some of my colleagues, attorneys general in other states, and we already have some other legal theories,” he said.

“There’s things involving whether OSHA can even promulgate any of these rules. This is just the opening salvo; it’s the first torpedo in the water, so to speak.”

On Thursday, Brnovich joined 23 other Republican state attorneys general in signing a letter urging Biden to “reconsider your unlawful and harmful plan” and vowing to “seek every available legal option to hold you accountable and uphold the rule of law.”

Brnovich’s lawsuit, filed Tuesday in U.S. District Court, names Biden and the heads of the Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement as defendants.

It argues primarily that Biden’s plan is unconstitutional because it won’t apply to people in the country illegally, and therefore would be discriminatory against U.S. citizens.

“It is not a sensible argument,” Paul Bender, a constitutional law professor at Arizona State University, told The Associated Press. “It’s worse than nonsensical. It’s really laughable.”

Bender said if immigrants living illegally in the country are working without authorization at an employer covered by Biden’s vaccine rules, they will have to follow them.

Biden’s plan calls for all employers with more than 100 workers require them to be vaccinated or test for the virus weekly. 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 requiring 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.

Brnovich said that in addition to the discrimination issue, Biden’s plan is a federal infringement on states’ rights.

“Regardless of what you think about the vaccines, this notion that the president unilaterally can order something that may affect more than 100 million Americans is really abhorrent to the Constitution and the way the framers designed this country,” he said.

The Associated Press contributed to this report.

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