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. 

In Louisiana. 

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.” 

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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. 

With his legal challenges to vaccine and mask mandates rejected by a federal judge, Attorney General and U.S. Senate candidate Mark Brnovich now wants Gov. Doug Ducey to order lawmakers back to the Capitol in hopes of a legislative fix. 

The attorney general wants a special legislative session to restore four statutes restricting the powers of local governments, public schools and universities to mandate that employees, staff and students be vaccinated against Covid or wear face coverings. In a letter to the governor, he called the situation “most pressing,” saying he has received complaints in particular from government workers who face the prospect of either submitting to a vaccine or being fired. 

All those provisions had been approved earlier this year. But all were voided by a trial judge because they were packed into various unrelated “budget reconciliation” bills, a ruling ratified by the Arizona Supreme Court. 

Brnovich, engaged in what could be a tight race in his bid to be the Republican nominee for U.S. Senate, also is pressuring Ducey to use what the attorney general contends are his powers to block what the schools and local governments are doing, even if the legislature cannot or will not. 

“It is my opinion that your office has clear authority to stop such government mandates immediately by instructing the Department of Health Services to exercise its primary jurisdiction under (state health laws) and issue an emergency rule that implements the directives articulated in the struck-down laws, thereby preempting contrary requirements from political subdivisions,” Brnovich wrote to the governor in a letter he made public. 

“Our constituents are expecting — and deserve — immediate attention to these substantial issues facing our state,” the attorney general told Ducey. 

But the governor, just back from a European vacation, is not ready to be pushed into action by Brnovich on either front. 

“We are reviewing the letter,” press aide C.J. Karamargin said Monday. 

And Brnovich, despite his very public effort to force the governor’s hand, refused to answer questions from Capitol Media Services about the scope of the governor’s powers or even the possibility of a special session. Publicist Katie Conner said Monday he is “not available for an interview” despite the fact he has appeared on Fox News at least four times in the past seven days to criticize the Biden administration on the issue of vaccine mandates. 

Brnovich, in writing the letter, may also need a political win. 

Just last week U.S. District Court Judge Michael Liburdi refused Brnovich’s highly publicized bid to block the Biden administration from requiring federal employees and workers for entities with federal contracts to be vaccinated. The judge said Brnovich failed to show a legal basis for an injunction. 

Meanwhile, the Supreme Court ruling has left the state without legal authority to enforce any of the prohibitions on vaccine and mask requirements that Republicans had previously approved. 

The justices have yet to explain their decision. To this point, however, nothing in that court ruling bars lawmakers from dealing with these issues individually — and in a legal fashion. 

But a special session before the legislature is set to reconvene in January could prove elusive. 

Rounding up lawmakers during the holiday season has often proven difficult. And then there’s the fact that the resignation of Rep. Becky Nutt, R-Pearce, has left the House GOP short of the 31 votes it needs to approve anything. 

And then there’s the fact that Ducey previously has indicated he will call lawmakers back to the Capitol early only if there already are the votes lined up for whatever is on the agenda. 

“I’m pretty sure the governor will not call a special session unless he’s confident we have 16 (Senate 

votes) and 31 (House votes) regardless of what the topic might be,” added Senate President Karen Fann, R-Prescott. 

But not everyone believes the governor should wait that long. 

“The people of this state deserve a chance to address this issue,” Sen. Michelle Ugenti-Rita, R-Scottsdale, told Capitol Media Services. 

“Put it on the (voting) board and let the chips fall where they may,” she continued. “At least people will see we tried rather than bury our head in the sand.” 

And Ugenti-Rita said the job that Ducey ran for and was elected is to act, “not to wait for laundry lists to be brought to him,” referring to the practice of bill sponsors to check off the names of those who have committed to vote for a particular issue. 

What also remains in doubt are claims that the governor, who gave himself emergency powers in March 2020, actually has the power to preempt local decisions on masks and vaccines. 

The issues have become Republican talking points. And Ducey and Brnovich, both Republicans, have previously tried to use that claim to get the city of Tucson to scrap its policy that employees be vaccinated unless they qualify for a medical or religious exemption. 

So far, though, the city has refused to relent. 

“The city’s mayor and council have express authority to adopt and implement measures that are necessary or convenient to prevent the spread of infectious disease in our community,” City Attorney Mike Rankin wrote late last month to Brnovich, citing the city’s charter. “In adopting the ordinance, the mayor and council made legislative finding citing to this authority, as well as to the city’s legal obligation as an employer to provide and maintain a safe and healthy workplace for its employees.” 

And Rankin said that Ducey is without power, even with the emergency declaration still in place, to preclude or preempt local jurisdictions from adopting health and safety measures. 

Brnovich’s latest letter to Ducey calling on him to act is separate from — but related to — a complaint filed with the attorney general’s office last month by Sen. Vince Leach, R-Tucson. 

Leach contends the Tucson vaccine requirement is illegal, not because of the mandate itself but because the city does not grant exemptions to anyone who claims a “sincerely held religious belief” against being inoculated. The senator said such automatic approval is required under a provision of a law approved earlier this year. 

That inquiry allows Brnovich, if he concludes the city is breaking the law, to order the state treasurer to withhold more than $100 million in state revenue sharing. And Rankin, while making legal arguments why Tucson is acting legally, also is preparing for that possibility. 

“Attorney General Brnovich has made it very clear that he will oppose any attempt by any governmental agency to impose a COVID-19 vaccine ‘mandate,’ ” the city attorney wrote. “Given this, I believe that the result of this investigation may be influenced as much by politics as the law.” 

Brnovich has to issue a finding before the end of the month. 

Arizona Attorney General Mark Brnovich said Thursday he plans to sue to block the Biden administration’s new mandate that large employers require their workers to either be vaccinated for Covid or undergo weekly testing starting in January.  

The Republican said the suit challenging the new Occupational Safety and Health Administration regulations targeting employers with 100 or more workers would be filed Friday. 

“When faceless government bureaucrats dictate what you must inject into your body, that’s the furthest thing in the world from a safe workplace,” Brnovich said in a statement. “The government doesn’t get to be your nanny, and it’s certainly not your doctor.” 

In a background briefing on the new rules Wednesday evening, a senior Biden administration official said they were needed to ensure worker safety.  

“A virus that has killed more than 745,000 Americans, with more than 70,000 new cases per day currently, is clearly a health hazard that poses a grave danger to workers,” the official said.  

U.S. Rep. Raul Grijalva, a Democrat who represents parts of southern Arizona, called the regulations “welcome news” that will save lives and prevent losses by businesses that experience Covid outbreaks among their workforces.  

“With COVID-19 as the new leading cause of death in Arizona, I applaud this effort to mitigate transmission of the virus in the workplace,” Grijalva said in a statement. “Right now, people are uncomfortable risking themselves or their families to be in unsafe working conditions – and that must change.” 

The lawsuit is the second filed by Brnovich, who is seeking his party’s 2022 U.S. Senate nomination, over federal vaccine or testing mandates. A suit he filed in September alleged the government was violating the Constitution’s equal protection clause because it is treating citizens differently than people caught crossing the U.S.-Mexico border illegally. Those people are offered vaccines but not required to be inoculated.  

A hearing on Brnovich’s request for a preliminary injunction in that case is set for next week. 

In other developments: 

— The Arizona Department of Health Services on Thursday reported an additional 3,352 new confirmed Covid cases and 17 more deaths, increasing the state’s totals to 1,179,072 cases and 21,290 deaths since the pandemic began. 

Covid-related hospitalizations dropped slightly, with 1,828 virus patients occupying hospital inpatient beds as of Wednesday, the department’s coronavirus dashboard reported. 

According to Johns Hopkins University data, Arizona’s seven-day rolling average of daily new cases has risen over the past two weeks from 2,131 per day on Oct. 19 to 2,684 new cases on Nov. 2. 

The rolling average of daily deaths has risen over the past two weeks from 39 per day on Oct. 19 to 40 per day on Nov. 2. 

— The Pinal County Board of Supervisors reversed itself and narrowly voted to accept a $3.3 million federal grant to help provide Covid vaccines to underserved populations in the semi-rural county in south-central Arizona, the Casa Grande Dispatch reported. 

The board voted 3-2 on Wednesday to accept the grant, with Supervisor Jeffrey McClure reversing his earlier vote on Sept. 1 against accepting the grant. A request by McClure for reconsideration prompted the re-vote on Wednesday. 

Supervisor Kevin Cavanaugh again voted against accepting the grant, saying “it’s a waste of money to hire a vaccine equity coordinator … when we could do this much better on a local level.”