Tuesday, September 14, 2021

How AZ AG Brnovich Got To File "1st Lawsuit In the Nation" Against Biden's Yet-To-Be-Detailed Vaccine/Testing Mandate; The Double-Flip With A Twist (READ Lawsuit)

Arizona Attorney General Mark Brnovich boasted today about his "first lawsuit in the nation" status against the Biden Administration's yet-to-be-detailed vaccine/testing mandate. The broad outline was announced by the President last week, so how is it that noone beat Arizona to the courthouse?

The answer lies in the creative legal argument presented today by the Attorney General's Office.  Brnovich's fellow Republican AGs and Governors were likely drafting their Complaints to be ready when OSHA finally files the proposed emergency rule requiring companies with more than 99 employees to either mandate vaccinations or testing of all employees.

Since the Arizona AG team already has honed its arguments against the Biden Administration's policies regarding illegal immigrants and the southern border, some gymnastic moves were in the repertoire.

Brnovich is attempting to land a double-flip with a twist. He notes that there is no vaccine requirement for "unauthorized aliens", so to (kind of) impose such a requirement on U.S. citizens is a sort of reverse discrimination and violates the 14th Amendment's Equal Protection Clause. (And, therefore, the action is subject to "strict scrutiny".

To stick the landing and file the case today, Brnovich notes that his colleagues with the traditional arguments must wait. "Courts will have an opportunity to review and invalidate those forthcoming mandates as to private employers, federal contractors, federal employees, and health care workers. But this particular component—i.e., the unconstitutional discrimination against U.S. citizens, lawful permanent residents, and aliens lawfully residing and working in the U.S.—is ripe for judicial review and invalidation now.

Much of the lawsuit is a strongly-worded press release. Literally, the first six pages are an "Introduction", and much of it is repeated in the subsequent facts section. "The same Administration that would not dream of infringing upon the right of unauthorized aliens to choose whether to be vaccinated (or not), has no equivalent regard for the rights of United States citizens."

And, it includes a shout-out and reference to Fox News, for noting that Biden Chief of Staff Ron Klain had retweeted a commentator's opinion that the yet-to-be-delivered vaccine/testing requirement is a "workaround". (Brnovich has already announced his first national interview on a conservative show to promote today's lawsuit.)

The entire legal allegations could have been published in a very brief Twitter thread. Here it is in its entirety:


The case has been assigned to Michael Liburdi, former General Counsel for Governor Doug Ducey.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

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How AZ AG Brnovich Got To File "1st Lawsuit In the Nation" Against Biden's Yet-To-Be-Detailed Vaccine/Testing Mandate; The Double-Flip With A Twist (READ Lawsuit)

Arizona Attorney General Mark Brnovich boasted today about his "first lawsuit in the nation" status against the Biden Administrati...