A federal judge on November 10 rejected a bid by Attorney General Mark Brnovich to issue an immediate nationwide injunction blocking President Biden from requiring federal workers and contractors to be vaccinated against Covid.
Judge Michael Liburdi said he was not buying arguments that it’s illegal for the president to impose such a mandate when he is not requiring the same of people entering the country illegally. The judge said there’s no legal comparison.
Liburdi, in denying the request by Brnovich for a preliminary injunction after more than three hours of legal arguments, also suggested he was not convinced by claims that Biden’s directives actually force anyone to do anything or that, as the attorney general contends, anyone’s rights of “bodily integrity” were being violated.
Instead, the judge phrased the issue as a condition of employment for federal workers. And Liburdi said they remain free to either get vaccinated or seek work elsewhere.
Ditto, he said, over the requirement that new federal contracts include clauses requiring the employees of these entities also be vaccinated. Liburdi said all that means is that the companies either comply or lose their contracts.
“You seem to want me to declare this unconstitutional,” he told Assistant Attorney General James Rogers, who was arguing the case for his boss. “I don’t think I’m going to do that.”
In fact, Liburdi questioned whether the state even has legal standing to challenge Biden’s directives – or whether he himself has the authority to issue the kind of injunction Brnovich wants to block nationally what the president is doing.
But Liburdi’s action is not the last word. Liburdi gave Brnovich some additional time to alter his complaint to address legal deficiencies and try again in a couple of weeks.
Potentially more significant, the judge made it clear that, as he considers a final ruling, he also has questions about claims by the Department of Justice that the president, simply by declaring he is acting in the name of government economy and efficiency, has broad powers over federal employees and contractors.
Central to the fight are two separate federal orders.
One requires federal workers to be fully vaccinated. Joseph DeMott, an attorney for the federal government, said that mandate, originally set for December 8, has been moved back to January 18.
Separate is an order that any new federal contracts signed after November 15 with other entities include a requirement that all the workers be vaccinated.
Brnovich is relying heavily on a claim that the president’s orders run afoul of the Equal Protection Clause of the U.S. Constitution.
Rogers told Liburdi that data from the U.S. Centers for Disease Control and Prevention shows that more than 1.7 million people entering the country illegally were detained at the southern border in the 12 months ending September 30. By contrast, he said there are 2.1 million federal employees.
“There are very similar buckets of people, number of people, affected by the policy,” Rogers said. “That just shows that there’s no rational basis for them to favor one over the other.”
And he said it’s not like these migrants are only in this country temporarily.
“They typically stay for years, often forever,” Rogers said.
Liburdi, however, said that is ignoring how equal protection laws work.
What would be an equal protection case, he said, is a school district looking for a science teacher imposing screening requirements on people of Middle Eastern descent that do not apply to other applicants.
But in this case, Liburdi said, if an undocumented person somehow became a federal employee, he or she would, in fact, be subject to the vaccine requirement, just like all other federal workers.
“So doesn’t that defeat your argument?” he asked.
“No, it does not,” Rogers responded.
Liburdi was no more convinced by Rogers pointing out that while the U.S. reopened its borders and is requiring proof of vaccination for foreign travelers that Biden has imposed no similar mandate for those arriving illegally.
“That’s a political issue,” the judge said. “That’s something that needs to be brought up with the congressional delegation.”
What did get Liburdi’s attention were arguments from Demott that Congress gave the president “broad authority to manage the operations of the federal government.”
“The federal government has determined it will operate more efficiently if its workers, with certain exceptions, are vaccinated against COVID-19,” he told the judge. And all that, DeMott said, falls within the power of the president to promote efficiency in the civil service.
Liburdi said that amounts to arguing that “the president could do whatever the president wants as long as there’s some sort of an explanation for it.” And the judge wanted to know how far the Department of Justice believes that power extends.
He asked whether the president, using that authority to make the government more efficient, can ban workers from drinking sugary sodas or eating at McDonald’s or Burger King simply by declaring that it leads to diabetes, increased need for health care and absenteeism.
“Could he issue an order prohibiting any employee of a federal contractor or subcontractor to drink Coke, Pepsi, Mountain Dew, have a Big Mac while employed?” Liburdi continued.
“What if there was an outbreak of sexually transmitted diseases and that caused death, absenteeism, increased health care costs,” the judge asked DeMott. “Could the president sign an order prohibiting employees from, well, you know?”
DeMott said those hypothetical situations “would present much, much more difficult situations” than what is at issue here. And at least part of it, the attorney said, is based on the record so far.
“We’ve had 18 months of a pandemic that has caused huge disruptions to public and private employers,” DeMott said. “The federal government is no exception.”
But Liburdi said that doesn’t answer the questions of the breadth of the president’s order. He noted that what Biden enacted even affects someone working from home doing payroll for a company with a federal contract
The lawsuit is the latest in a string of legal actions Brnovich, a Republican candidate for U.S. Senate, has filed against the Biden administration, mostly related to his criticism of the president’s immigration and border policies. Several already have been dismissed, though the U.S. Supreme Court did agree to let him argue next year that he should be able to defend a Trump-era policy, scrapped by Biden, that denies permanent legal status – also known as green cards – to migrants who do not meet certain financial conditions.