President Joe Biden’s COVID-19 vaccine mandates have been running into trouble in the courts, with the U.S. Supreme Court striking down the mandate for large businesses, and several judges stopping his mandate for federal contractors. The latest one to do so is Judge Michael Liburdi of the U.S. District Court for the District of Arizona in Phoenix, who ruled on January 27 that the Biden administration lacked authority to implement the mandate, granting an injunction.
Arizona Attorney General Mark Brnovich brought the lawsuit against the Biden administration over that mandate and others. He told The Arizona Sun Times, “If left unchecked, these unlawful and unconstitutional mandates would essentially override the Ninth and Tenth Amendments to our Constitution, and eviscerate the most basic health care freedoms of millions of Americans. It’s federal overreach at its worst. I will continue to stand up for Arizona. I’m proud to have led the fight against the Biden Administration’s unprecedented power grab. The government shouldn’t be your nanny, and it doesn’t get to be your doctor either.”
Whether or not you agree with this vaccine, no one person should have the power to tell you what to inject into your body.
— Mark Brnovich (@GeneralBrnovich) January 27, 2022
Liburdi’s decision applies to Arizona companies and state employers that do business with the federal government. The mandate was scheduled to take effect this month.
In his 55-page decision, Liburdi cited a Supreme Court case from the 1990s, Thunder Basin Coal Co. v. Reich, stating that “It is beyond doubt that the Contractor Mandate ‘seeks to set a broad policy governing the behavior of thousands of American companies and affecting millions of American workers.’”
He noted that “federal contractor employees comprise nearly a fifth of the entire U.S. labor force” and that the mandate includes “employees who are not themselves working on federal contracts, have previously been infected with COVID-19, work entirely outdoors, and work remotely full time.”
Liburdi said the mandate took an overly expansive interpretation of the Procurement Act, explaining, “Defendants’ reading of § 121(a) would grant the President ‘a breathtaking amount of authority.’ Indeed, ‘[i]t is hard to see what measures [Defendants’] interpretation would place outside’ the President’s reach.”
He provided an analogy to show how Biden’s interpretation of the law could result in too much power.
“If, for example, the president determined that obesity, diabetes, and other health issues were linked to the consumption of sugary drinks and fast food, and that such health issues led to absenteeism and a lack of productivity in the workplace, he could, on Defendants’ reading, issue an executive order requiring all federal contractor employees to refrain from consuming soda or eating fast food,” he said.
Liburdi concluded, “policies promulgated under the Procurement Act must relate — to procurement.” He cited the dissent in the 1980 Supreme Court case AFL-CIO v. Kahn, which examined the legislative history of the Procurement Act, “there is not a single passage in that history … remotely supporting the use of the procurement power to achieve nonprocurement objectives.”
Liburdi also found that “the Contractor Mandate intrudes into an area traditionally and principally reserved to the states.” He wrote, “Consistent with that authority, Arizona has enacted laws prohibiting State and local government entities from imposing vaccine mandates.”
He didn’t slap an injunction on Biden’s mandate for federal employees, which Brnovich had also challenged. Liburdi said the state lacked standing for that.
Brnovich has been outspoken saying that the choice to get the COVID-19 vaccine should be left up to individuals. When a reporter asked him if he was unvaccinated in November, he responded, “Have you had an STD?”
Brnovich has led much of the state’s efforts opposing the vaccine mandates and COVID-19 restrictions. Gov. Doug Ducey has not joined any of Brnovich’s lawsuits, and encourages Arizonans to get the COVID-19 vaccine. In September 2020, Brnovich filed a brief challenging Ducey’s lockdown order closing bars, which became moot when Ducey ended the pandemic restrictions.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Judge Michael Liburdi” by Arizona Republican Party. Background Photo “Courtroom” by Karen Neoh. CC BY 2.0.
