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Arizona First State to Sue Biden Administration over Vaccine Mandate

The state of Arizona has sued the Biden-Harris Administration over the “egregious” coronavirus vaccine mandate, which Arizona Attorney General Mark Brnovich argues violates the Constitution’s Equal Protection Clause by discriminating against U.S. citizens as illegal immigrants in federal law enforcement’s custody are not subordinate to the same vaccine mandates.

“In a nutshell: unauthorized aliens will not be subject to any vaccination requirements even when released directly into the United States… while roughly a hundred million U.S. citizens will be subject to unprecedented vaccination requirements,” Brnovich told a federal district court in Arizona in a 14-page filed complaint. “This reflects an unmistakable — and unconstitutional — brand of favoritism in favor of unauthorized aliens.”

HIDALGO, TEXAS – MARCH 25: A U.S. Border Patrol agent hands out masks to unaccompanied minors after a group of asylum seekers crossed the-Rio Grande into Texas on March 25, 2021 in Hidalgo, Texas. A large group of families and unaccompanied minors, mostly teenagers, came across the border onto private property, where Border Patrol agents took aside the unaccompanied minors for separate transport. The Biden administration is permitting minors to stay in the U.S., whereas many families, especially with older children, are being deported. (Photo by John Moore/Getty Images)

The complaint continues:

Specifically, the Biden Administration has disclaimed any COVID-19 vaccination requirement for unauthorized aliens, even those being released directly into the United States. Although the Department of Homeland Security (“DHS”) offers vaccination to aliens it apprehends unlawfully entering the United States, it does not insist that they be vaccinated—even if they are being released into the U.S., rather than being immediately deported.

The upshot is that aliens unlawfully crossing into the United States are not bound by any federal vaccination requirement whatsoever. Their rights to choose to be vaccinated—or not—command the unadulterated respect of Defendants. Those of U.S. citizens: not so much. The same Administration that would not dream of infringing upon the right of unauthorized aliens to choose whether to be vaccinated (or not), has no equivalent regard for the rights of United States citizens.

Brnovich asked the court to render the mandate unconstitutional. The mandate forces mid to large-sized businesses and federal employees and contractors to be vaccinated. The mandate is enforced by a $14,000 fine per violation.

“The Biden Administration is once again flouting our laws and precedents to push their radical agenda,” Brnovich tweeted. “There can be no serious or scientific discussion about containing the spread of COVID-19 that doesn’t begin at our southern border.”

Biden’s mandate, announced last week, gives the Occupational Safety and Health Administration (OSHA) authority to enforce the mandate, though it is unknown if OSHA has such constitutional authority to do so.

The mandate has not yet been issued, so the precise details remain unclear.

Left-leaning professor Cass R. Sunstein is a legal mind that doubts OSHA’s authority. He writes:

The core provision of one of the nation’s most important regulatory statutes—the Occupational Safety and Health Act (“OSHA”)—is not easy to distinguish from the hypothesized statute. That provision defines an “occupational safety and health standard” as one that is “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”

But former OSHA deputy assistant secretary Jordan Barab from the Obama administration said OSHA could do the bidding of the Biden administration. “OSHA’s never been a beloved agency for Republicans. They’ve always gone after OSHA for interfering with corporate autonomy,” claimed Barab.

White House press secretary Jen Psaki has stated the White House expects OSHA to enforce Biden’s mandate. “Certainly this will be up to a number of private-sector companies. Our expectation and hope is they will take these steps on their own, and then we will continue to implement for those who are not complying,” she said.

The Associated Press

White House press secretary Jen Psaki speaks during the daily briefing at the White House in Washington, Wednesday, Sept. 8, 2021. (AP Photo/Susan Walsh)

Whether this lawsuit or one of the others that will be filed in the coming weeks, disputes over the constitutionality of excluding illegal aliens, as well as the legality of OSHA’s authority to issue this regulation at all, are expected by some to make their way ultimately to the Supreme Court.

The case is Arizona v. Biden, and a docket number has not yet been assigned in the U.S. District Court for the District of Arizona.

Follow Wendell Husebø on Twitter @WendellHusebø 


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