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Biden’s vaccine rules dented in partial win for Brnovich

A federal judge Thursday blocked the Biden administration from requiring the state or any Arizona company with a federal contract to vaccinate all of its workers against COVID-19. 

In a 55-page ruling, Judge Michael Liburdi rejected claims by the administration that federal procurement laws give Biden broad authority to regulate employment conditions at any company or state agency with which it does business. The government’s lawyers had argued that the president needs to ensure that the work on the federal contracts is performed and not hampered because unvaccinated workers get infected. 

Liburdi scoffed at “the sheer scope of the president’s claimed authority,” saying that buying Biden’s argument would give the president almost unfettered power to interfere with private employment. 

“If, for example, the president determined that obesity, diabetes, and other health issues were linked to the consumption of sugary rinks and fast food, and that such health issues led to absenteeism and a lack of productivity in the workplace, he could, on (the administration’s) reading, issue an executive order requiring all federal contractor employees to refrain from consuming soda or eating fast food,” the judge wrote. “But in reality, the president’s authority under the (procurement) act is not so broad.” 

Liburdi did not dispute that the pandemic will have some impact on federal contracts. But that, he said, does not make the Biden policy lawful. 

He cited rulings by federal judges in other states who have struck down a parallel policy of having the Occupational Safety and Health Administration demand that companies with more than 100 workers get their employees vaccinated to protect their own safety. 

“That contractor employees, like private sector employees, face the hazards of daily life while on the clock does not grant the president carte blanche to regulate with respect to those hazards,” Liburdi wrote. “To hold otherwise would significantly expand the president’s procurement authority without clear congressional authorization.” 

Thursday’s ruling is at least a partial victory for state Attorney General Mark Brnovich who first challenged the president’s authority in September. 

But Liburdi refused to issue a similar injunction challenging the mandate that federal workers get vaccinated, saying Brnovich lacks standing to sue on their behalf. 

“Neither the state nor its employees are subject to the employee mandate,” he wrote, calling that order “an exercise of the president’s considerable constitutional authority to regulate the internal affairs of the executive branch.” 

Brnovich had sought to get around that problem of legal standing by adding Al Reble, who works at the U.S. Marshal’s Office and has refused the vaccine. But Liburdi noted that Reble’s request for an exemption is pending, meaning he is in no danger of being disciplined. 

Thursday’s ruling is generally in line with federal court decisions elsewhere challenging various provisions of the administration’s efforts to impose vaccine mandates on contractors in other states. This, however, is the first such decision in Arizona. 

A separate ruling by the U.S. Supreme Court earlier this month blocked the Biden administration from using its powers under OSHA to require private employers nationwide to have their own workers vaccinated. 

In enjoining the vaccine mandate here, Liburdi said this is more than an academic dispute about presidential powers for federal contractors in Arizona. 

The judge noted that the federal government, relying on Biden’s directive on contractors, already has demanded that multiple state agencies immediately require their workers to get vaccinated. 

“Absent an injunction, the state will be required to choose between forfeiting numerous and significant federal contractors, and requiring its employees to be vaccinated against COVID-19,” Liburdi said. 

For example, he noted, the three state universities had federal contracting revenues last year of more than $1.2 billion. 

“The three universities will thus forfeit more than a billion dollars if they do not adhere to the contractor mandate,” Liburdi wrote. And he pointed out the schools are “actively engaged in efforts to comply with the mandate,” including informing current and prospective employees, gathering proof of vaccination, and reviewing requests for accommodations from those who cannot be vaccinated for medical or religious reasons. 

There are other contracts that would be endangered, he said, ranging from state inmates performing work on Forest Service land to the state Department of Transportation leasing space to the federal government at the port of entry in Nogales. 

Liburdi found other legal problems with the president’s directive. 

He said that the U.S. Constitution generally reserves police power to the state. And that, the judge said, is defined as the authority to provide for public health, safety and morals. 

“This traditional ‘police power’ includes authority over compulsory vaccination,” Liburdi wrote. “It also includes, as a general matter, power to prohibit vaccination from being compelled.” 

And he noted that state legislators have exercised their authority in this area, enacting laws prohibiting state and local agencies from imposing vaccine mandates, as has Gov. Doug Ducey, for whom Liburdi used to work as general counsel, through executive orders. 

The judge acknowledged that just because states possess authority over compulsory vaccination does not necessarily mean the federal government does not. 

“State and federal governments regularly exercise concurrent regulatory authority,” he said. 

But he said that is within the power of Congress. And he said there is no indication Congress intended to let the president use the procurement act to compel vaccination. 

Separately, Liburdi rejected an argument by Brnovich that even if vaccine mandates are legal, federal law gives all individuals the absolute right to refuse any drug that has received only Emergency Use Authorization from the federal Food and Drug Administration. The judge said that misreads the law. 

“At most, it requires only that individuals to whom the vaccine is administered are (ITALICS) informed (ROMAN) of the option to accept or refuse administration of the product,” Liburdi said. “The statute is about provision of information; as long as individuals receiving the vaccine are informed, the statutory requirement is met.” 

The judge also tossed out claims filed by the Phoenix Law Enforcement Association which was fighting the city’s vaccine mandate which has since been rescinded.

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