President Joe Biden’s vaccine mandate is unconstitutional, Arizona Attorney General Mark Brnovich says.
Brnovich filed a lawsuit against the president and other Biden administration officials on Tuesday, arguing that the vaccine mandate is an assault on state sovereignty.
“[W]e know from reading Federalist 45 and Federalist 51 that people like James Madison, who wrote the Constitution, expected the states to push back against the federal government,” Brnovich says.
The attorney general, a Republican, also says, “Nowhere in the Constitution does it provide or does it allow the president or the federal government to require any sort of vaccines.”
Last week, Biden signed an executive order mandating the vaccination of all federal employees and contract workers. The president also directed the Department of Labor to write a rule mandating all organizations with 100 employees or more to require all their employees be vaccinated or tested weekly.
Brnovich says the president’s actions not only violate American freedoms, but also the equal protection clause of the Constitution.
The Arizona attorney general joins “The Daily Signal Podcast” to explain what he hopes to accomplish through the suit.
We also cover these stories:
- Idaho puts in place crisis standards of care throughout the state, citing the number of COVID-19 patients requiring hospitalization.
- After an article from The Daily Signal and a press release from The Heritage Foundation, online retailer Amazon rescinds an ad ban for a new book released by Heritage Foundation scholar Mike Gonzalez.
- According to a report by the Department of Homeland Security’s Office of Inspector General, migrants, staff, and border communities were exposed to greater risks of COVID-19 infection by the department’s failure to adequately screen incoming migrants for the disease.
Listen to the podcast below or read the lightly edited transcript.
Virginia Allen : It is my honor to be joined by Arizona Attorney General Mark Brnovich. Attorney General, thank you so much for being here.
Mark Brnovich: Thank you, Virginia, for having me, and hello to all my friends out there in Heritage world, including John [Malcolm] and Hans [von Spakovsky].
Allen: Oh, it’s a real, real pleasure to have you here, to have you back on the show. Last week, President Joe Biden signed an executive order mandating that all federal employees and contract workers must be vaccinated. The president also directed the Department of Labor to write a rule mandating that organizations with 100 employees or more need to either require all their employees to be vaccinated or be tested weekly. Attorney General, in response to the president’s mandate, you filed a lawsuit against President Joe Biden and other members of the Biden administration. You argue that this vaccine mandate is unconstitutional. Why do you think it’s unconstitutional?
Brnovich: Well, Virginia, let me give you a long answer and a short answer. As you know, and we’ve talked about this before, is that I’m a first-generation American, and my family fled communism. And when your family has just not only studied history, but lived it, you have a great appreciation for how unique freedom and liberty is, and how important this framework we have in our country with the Constitution and the rule of law. And so I have been a big protector and defender of the rule of law my entire career. And so whenever there’s any sort of legal issues that come up, my first question always is, “What does the Constitution say? What does the law say?” And so as you know, I have filed multiple lawsuits against the federal government, even going back to my Goldwater [Institute] days when it’s come to issues involving federalism and state sovereignty.
And so when the Biden administration issues a federal vaccine mandate, and that’s what it is, my first analysis isn’t, “Well, is that good, is it bad,” whatever, it’s, “Well, what does the Constitution say?” What does the Constitution say? And nowhere, nowhere in the Constitution does it provide or does it allow the president or the federal government to require any sort of vaccines, or for you to put anything in your body. You know, and I know all the folks in Heritage world appreciate, that the federal government was designed to be a government of limited powers. And we know from reading Federalist 45 and Federalist 51 that people like James Madison, who wrote the Constitution, expected the states to push back against the federal government, and individual rights and liberties, police powers, public health, safety, welfare, were designed to be left to the states.
And so we argue, and what I’ve said, is a), the federal government, and especially one person, the president, does not have the power to mandate any sort of vaccine. And secondly, even if this administration somehow could do that, they can’t do it in a manner that’s inconsistent with the Constitution.
And by literally exempting the millions of people that have crossed the border illegally by giving them the option whether to opt out, but not providing that same option to U.S. citizens, they are clearly violating the Equal Protection Clause of the Constitution. And it absolutely breaks my heart to say this, but apparently the Biden administration cares more about people in Central America and preserving their rights and liberties than they do about preserving the rights and liberties of hardworking American taxpayers.
Allen: You know, I think that argument about the Equal Protection Clause is really fascinating. I want to talk about that more in just a moment, but first I want to mention… On Tuesday, you said during a press call, quote, “This lawsuit is about federalism, constitutional principles, and the fact that the Biden administration has no authority under the Constitution to mandate COVID-19 vaccines. Period.” Explain why federalism is such an important factor in this argument.
Brnovich: First and foremost, we always have to remember that the states created the federal government. And a lot of times, people learn in high school… Or they used to, at least. You learn in school that we have the separation of powers. And kids are taught, well, it’s the judicial, the executive, legislative branch, and … the separation of powers is designed to make sure no one becomes tyrannical or too big.
But the ultimate check on federal authority and the ultimate separation of powers is at the states. The states were designed to be a check on the federal government. And that there’s this fundamental underlying premise that the framers understood, and we should understand, is that government doesn’t give us our rights. Our rights come from the creator, from God, and governments are instituted and designed to protect those rights.
And the Constitution was written, and the framers had in mind, that the federal government only had the powers and could only exercise their enumerated powers. And people like James Madison used to talk about the fact that rights and powers are just different sides of the same coin, because they understood that the less power the federal government had, the more rights individuals had. And so we’ve kind of lost track of this.
And especially the progressive movement—[former President]Woodrow Wilson—as that accelerated, this kind of different philosophy arose that, “Wait a minute, if only we had the experts, if only we had the right people running government, if only we create this bureaucratic state with more federal agencies, they’ll know what to do best, and they can decide and pick and choose which rights and to have to which people.” And that has dramatically led to the acceleration of power in Washington, D.C.
And as power gets concentrated in Washington, D.C., it becomes unaccountable, it becomes bigger and bigger, and then eventually it becomes tyrannical. And that’s why these vaccine mandates, it’s so important to push back with every weapon or every tool we have in our toolbox.
Because if you allow one individual, something that not even King George could have dreamed of, one individual to dictate to you or anyone else that you have to inject something in your body, that you have to affirmatively get a medical treatment, then that means that the power of the president is unfettered. It’s not tethered to the Constitution. It’s not even tethered in existing law. So there’s no statutory authority for what he’s doing, but more importantly, there’s no constitutional authority for what he’s doing. And I do think that if [Occupational Safety and Health Administration] ends up promulgating rules, which they’re going to, I think those are all going to be constitutionally suspect.
Allen: Now we have heard arguments, some saying that there actually is precedent. They’ve referenced the 1905 Supreme Court ruling, which is seven to two in the case of Jacobson v. Massachusetts. In that ruling, the city of Cambridge, Massachusetts declared that they could fine individuals who refused to take a smallpox vaccine. Is there a difference between that ruling about 120 years ago and what we’re seeing today?
Brnovich: Absolutely. And it’s once again coming back to first principles and federalism—a republic, if we can keep it. And the key distinction right there in the Jacobson case is it was a state. And traditionally, the framers and our Constitution provides that issues of public health, safety, welfare, exercise, what constitutes traditional police powers was something that was going to be left to the states.
So regardless of what you think about what we should or shouldn’t do with COVID and pandemics and disease outbreaks, the bottom line is that the federal government does not have the authority, and it doesn’t have the authority even under the plain reading of Jacobson to do that. Second thing, I think it’s important to point out in that case itself, it was like a $5 fine. It was like a $5 one-time fine.
And the reality is that if you were presenting people with an option of saying, “OK, you can either get the vaccine or have some de minimis penalty, a one-time penalty,” that’s maybe a real choice.
But what the Biden administration is doing is basically saying to people is that you’re going to lose your job. You’re going to lose your livelihood. You may lose a multi-million dollar government contract. You may not be able to provide healthcare to elderly and vulnerable patients if you’re a doctor, all because Joe Biden thinks he knows what’s best for you. So that is fundamentally different from Jacobson, and so I think that there’s a misplaced reliance on that. And just as we’re talking here, Virginia, I just couldn’t help but think back. I remember even around that time period, you had other cases like Champion v Ames, which went up to the Supreme Court, and I think about that.
That dealt with gambling and gaming … Congress had passed a law that prohibited the interstate transportation of lottery tickets. And it was a one-vote decision. And the Supreme Court at that time struggled with whether the federal government could even prohibit the transportation of illegal lottery tickets across state line by the U.S. Postal Service, because that was an exercise of police power. So we’ve come a long way in 100 years. … Even 100 years ago, the Supreme Court understood that the police powers of the federal government were extremely limited, and the police powers were supposed to reside with the states. …
The Biden administration has clearly abdicated. In fact, they’re refusing to follow existing law. … We have multiple lawsuits against the Biden administration where we argue they’re not following existing federal law, which they’re clearly not. So when they’re supposed to be following the law and the Constitution, they don’t want to, but then they want to go ahead and cavalierly or unilaterally pick and choose how they can exercise their federal authority completely inconsistent with the Constitution. And I’m sorry, I feel like I’m filibustering here, but let me just add one last thing to this. I think you know, or maybe your listeners know, that I also have a lawsuit against the Biden administration we filed against [Treasury] Secretary [Janet] Yellen, which dealt with the COVID relief bill.
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Once again, a massive transfer of wealth and power to D.C. But in that COVID relief bill, it provides that if you’re a state and you get COVID relief money, you can’t cut state taxes. So think about the dishonest and intellectually inconsistent arguments about what the Biden administration is doing. The federal government can send someone a $1,400 stimulus check, but the state of Arizona can’t cut your taxes by $1,400? Why do you think that is? I would submit to you that’s because it’s all about the federal government trying to control you and your livelihood, and what our lawsuit argues is that this federal government can’t do that. It violates traditional notions of anti-commandeering.
In fact, the recent PASPA case, the Amateur Sports Protection Act … we sided once again with the states against the federal government when it came to whether the states commandeered the states over gambling issues. But there are all sorts of these issues where if you look at the Ninth Amendment and the Tenth Amendment, where that clearly sets forth the powers of the federal government are enumerated and limited, the Biden administration is just blowing past those barriers. And so we’re fighting them on multiple fronts, and this vaccine mandate is just the latest one.
Allen: And the other part of your lawsuit, as you mentioned earlier, it has to do with the Equal Protection Clause of the Constitution. Explain that aspect of the suit, if you would.
Brnovich: Well, our Constitution provides that everyone is equal under the law. And in fact, I think that’s the reason why so many people want to come to the United States. We don’t need the Biden administration spending $300 million to figure that out. They want to come here because we’re the greatest country, and we are the greatest country because we have a Constitution, we have stability, and we have the rule of law. And so everyone is equal under the law, but what the Biden administration has done is they basically said that if you’ve come here illegally, you’ve crossed our Southern border illegally, they may put you up in a hotel in Scottsdale. They may put you on an airplane and send you to Kansas or Virginia, Missouri, or wherever else. But you don’t have to… You have the option, if you’re here illegally, whether to take the vaccine or not, where once again, the Biden administration probably has more authority. But if you’re a U.S. citizen, you have to get the vaccine.
And make no mistake about it, Virginia. I mean, this is just the camel’s nose under the tent. The Biden administration is mandating this now, but you see, they are going to end up mandating this for everyone, because this is about a massive federal power grab over controlling our lives. And so we, in our lawsuit, point out the inconsistency and the unconstitutionality of frankly treating non-citizens better than citizens. But make no mistake about it, no one, no one should be required to get the vaccine. But I think that by us pointing that out and using every weapon in our toolbox to try to fight back against the Biden administration, we have shown the bankruptcy of what they’re doing and their ideas.
Allen: You filed the lawsuit with the U.S. District Court of Arizona on Tuesday. Ultimately, what are you asking the courts for? What do you want to achieve through this lawsuit?
Brnovich: Well, we’re asking the court to simply enjoin the Biden administration for mandating the vaccine for anyone, whether they’re a federal employee or not. And frankly, it breaks my heart, because I’ve had people reach out to me. Look, I’m a middle-class kid. I live in the same neighborhood I grew up here in Arizona, and I’ve had so many folks—teachers, firefighters, law enforcement folks—reach out and say, “Oh my gosh, this will affect me even though I’m not a federal employee,” because maybe their business receives federal money, or they’re a federal contractor. And so there are a lot of folks that are really scared, they’re really nervous. They worry not only about the constitutional arguments, but there’s been a lot of uncertainty because of what the Biden administration said or hasn’t said as far as the pandemic, and it worries folks.
And there’s a lot of uncertainty now. There’s a lot of inconsistency. And so I’m going to do everything I can to push back against the Biden administration and its unconstitutional mandates. This is not the final step. This is the first step. This is the first salvo.
Or it’s a continuous salvo, at least on my part, to push back against federal overreach and to make sure that we have a federal government that exercises its authority in a way that’s consistent with the Constitution, because all of us need to remember that there are two maladies facing this country right now. One was created in a Chinese lab, and the other one’s emanating from the D.C. swamp. And we need to do everything we can to push back and fight against this overreach coming out of Washington.
Allen: Attorney General, last question before we let you go. I know that there’s been talk of maybe other states joining this lawsuit or filing other similar lawsuits in response to this vaccine mandate. Do you know where we stand with that, if there are other states that are getting involved in the same way you have?
Brnovich: Yeah. My colleagues and I actually just sent a letter to the Biden administration laying out why what they’re proposing is constitutionally suspect. I do know that we are working even with other states, some of my partner AGs, to develop more legal theories, more lawsuits. … And this isn’t political, it’s about the Constitution. If you believe in federalism, if you believe in individual liberty, if you believe in economic freedom and the dignity of every human being, every one of us needs to be fighting back and pushing back against this drastic power grab by the Biden administration.
Allen: Attorney General, thank you so much for your time today. We really appreciate you coming on.
Brnovich: Thank you, Virginia.
