Legal scholars question Arizona attorney general’s ability to sue before the mandate policy is in place
THE WALL STREET JOURNAL // SEPTEMBER 14, 2021
The Republican attorney general of Arizona filed a lawsuit Tuesday to stop the Biden administration from imposing Covid-19 vaccine requirements for tens of millions of workers, marking the first legal salvo against the president’s mandate policy.
The White House said federal workplace-safety officials in coming weeks will invoke rarely used emergency powers to direct employers with 100 or more employees to require that their workers be vaccinated or undergo at least weekly Covid-19 testing. Businesses that don’t comply can face fines of up to $14,000. Many details remain uncertain.
The 15-page lawsuit filed by Arizona Attorney General Mark Brnovich, the state’s chief legal officer since 2015, argues that the president’s plan to combat Covid-19 unconstitutionally discriminates against U.S. citizens and other legal residents by not insisting that undocumented migrants detained at the U.S. border be vaccinated.
“The federal government cannot force people to get the Covid-19 vaccine,” Mr. Brnovich said. “The Biden administration is once again flouting our laws and precedents to push their radical agenda.”
The White House declined to comment.
President Biden’s requirements are the most controversial part of his broader strategy to combat the Delta variant of the Covid-19 virus. Republicans and other conservative critics of the president’s policy have questioned whether the Occupational Safety and Health Administration, or even the federal government, has the authority to adopt such a sweeping medical mandate.
Legal observers say they expect the vaccine rules to be met with a flurry of lawsuits from other states, employers and workers. They gave a skeptical reception to Mr. Brnovich’s arguments and his state’s ability to pursue litigation at a point when the federal rules have yet to be promulgated or enforced.
“The arguments are not particularly serious,” said Jonathan Adler, a constitutional law professor at Case Western Reserve University. “The policy isn’t in place yet.”
