Without a single win yet in his legal battles with the Biden administration, Attorney General Mark Brnovich has opened up a new front with a new lawsuit.
Brnovich, hoping to be the Republican nominee for U.S. Senate, is co-leading a group of 11 other Republican attorneys general in a bid to get a federal judge there to void a mandate by the Centers for Medicare and Medicaid Services that 17 million health care workers employed at facilities getting federal dollars be vaccinated against Covid. The lawsuit, filed in federal court in Monroe, La., details why Brnovich believes the move exceeds the agency’s authority.
But in some ways the latest litigation is in some ways just a new version of lawsuits that he already has filed challenging other actions by the Democratic president. Brnovich himself acknowledged that in the latest legal papers, decrying the three separate vaccine mandates that “as the president himself has confirmed, increase societal vaccination rates.”
“There’s just one problem: no statute authorizes the federal executive to mandate vaccines to increase societal immunity,” the lawsuit states.
“The administration’s solution? Use statutory schemes never before interpreted to allow federal vaccine mandate to shoehorn the president’s goals into the fabric of American society,” it continues.
And as proof, it cites both the bid by the Occupational Safety and Health Administration to require vaccines or testing of workers at large companies as well as the executive order mandating vaccination of federal employees and workers at entities with federal contracts.
Brnovich has sued over both.
In the first, a federal appeals court put the OSHA directive on hold — but not in the lawsuit filed by Brnovich. In the second, a federal judge in Phoenix just last week rejected his bid to enjoin the mandate from taking effect as scheduled.
The new lawsuit continues along the same lines with many of the same arguments.
“The Biden administration is playing statutory shell games with the courts, straining to justify an unjustifiable and unprecedented attempt to federalize public health policy and diminish the sovereign states’ constitutional powers,” it reads.
In August, Biden announced he was ordering that those working in nursing homes accepting Medicare and Medicaid patients be vaccinated. But the big move came on Sept. 9 when he extended that to all health care facilities participating in either program.
“If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated,” the president said. “Simple, straightforward, period.”
Brnovich, however, is telling a federal judge that the requirement will have the reverse effect.
“The vaccine mandate causes grave danger to the vulnerable persons whom Medicare and Medicaid were designed to protect — the poor, children, sick, and the elderly — by forcing the termination of millions of essential ‘healthcare heroes,’ ” the lawsuit states. He said that’s because employees who don’t want to get vaccinated will quit, “decimating those covered facilities’ ability to provide critical healthcare services and possibly forcing them to exit from the Medicaid and Medicare programs or forcing their closure altogether.”
CMS, in its announcement, acknowledge the rule “may create some short-term disruption of current staffing levels for some providers or supplies in some places.” But the agency said “there is no reason to think that this will be a net minus even in the short term.”
Brnovich said that claim is not based in reality.
“It cites not evidence that — in the current climate of long-running, wide-ranging, and persistent healthcare staffing shortages — new recruitment will magically replenish staffing shortages caused by those who will leave their jobs rather than submit to federally coerced vaccinations,” the lawsuit says. “The agency’s glass-half-full (and fact-free) optimism offers only cold comfort to those healthcare heroes who have worked tirelessly from the outset of the pandemic and who now face joblessness as the cost of pushing back against federal overreach — and to the patients who will no longer receive healthcare because of it.”
Brnovich, in a separate press release, said he has data to back that up.
He cited a study by AARP, updated just a week ago, which shows that close to a third of health care staff in Arizona nursing homes is vaccinated. And about a quarter of nursing homes in the state report they have a staffing shortage.
The fight over this mandate and others has taken on political overtones on both sides, as even Biden acknowledged with his September announcement
“Let me be blunt,” he said. “My plan also takes on elected officials and states that are undermining you and these lifesaving actions.”
And while Biden was referring at that moment to school vaccine and mask requirements, he also had a message.
“If these governors won’t help us beat the pandemic, I’ll use my powers as president to get them out of the way,” he said.
Brnovich, for his part, said that shows a “disrespect for state governments” by the president.
A spokesman for CMS said they cannot comment on pending litigation. But the agency defended the rules.
“There is no question that staff in any health care setting who remain unvaccinated post both direct and indirect threats to patient safety and population health,” the statement said. “That is why it is imperative for health care providers to ensure their staff who may interact with patients are vaccinated against COVID-19.”
Lawsuits filed by Brnovich, either alone or with other states, against the Biden administration:
— The decision to cancel construction of the border wall, alleging among other things that the administration did not study the environmental effects of the move. That case is pending in federal court in Phoenix.
— A suit against the Department of Homeland Security for failing to deport certain people here illegally quickly enough. A trial judge threw out the case. It is now on appeal.
— Challenging the Department of Treasury on rules that prohibit states from using Covid relief funds for tax cuts. Rejected by trial judge. Appellate court hearing in January.
— Seeking to defend a Trump-era rule to deny “green cards” — permanent legal status — to certain migrants who are at the bottom of the economic ladder. The bid was rejected by a trial judge and the 9th Circuit Court of Appeals but the U.S. Supreme Court has agreed to hear arguments next year on why Brnovich believes he has legal status to go back to trial court and defend the rule.
— Requirements for vaccination of federal employees and contractors. A trial judge refused to grant an injunction but did agree to allow Brnovich to amend his case and try again.
— A mandate for vaccination or regular testing of workers at private firms with 100 or more workers. There was no action by the federal appeals court in which Brnovich sued but a different appeals court hearing arguments from other states temporarily halted that requirement pending further hearings.