Arizona Attorney General Mark Brnovich is suing the Biden administration again over its COVID-19 vaccine mandates, this time leading a coalition of other attorneys general against the mandate for healthcare workers, known as the Centers for Medicare and Medicaid Services mandate. He took the lead along with the attorneys general of Montana and Louisiana in a 69-page complaint, which was joined by 13 other states.
Brnovich said in a statement, “The unlawful mandate for facilities that receive Medicare or Medicaid funding from the U.S. Department of Health and Human Services is ‘causing havoc in the healthcare labor market’ across the nation – especially in rural communities – and does not account for the pandemic’s changing circumstances.”
The U.S. Supreme Court struck down the Biden administration’s vaccine mandate for large businesses last month, but left the mandate for healthcare workers in place. The attorneys general argue that since that decision, circumstances have changed. The Biden administration said the reason for the mandate was due to the delta variant surging. But the milder Omicron variant now accounts for 99.9 percent of COVID-19 cases in the country. When the mandate was implemented on Nov. 6, 2021, 98.7% of all COVID-19 cases were the delta variant.
The brief notes that “Omicron’s transmission is largely undeterred by the vaccines.” They point out, “Even Dr. Anthony Fauci recently warned that ‘Omicron, with its extraordinary, unprecedented degree of … transmissibility, will ultimately find just about everybody.’”
The brief also points to “increasing warnings about the risks and side effects posed by the vaccines,” citing side effects listed by the CDC. They note, “This emergency is continually evolving.”
They note that the mandate “is causing havoc in the healthcare labor market.” Several large hospitals have dropped their vaccine requirements because it was too difficult finding enough workers. Two governors asked for exemptions because it was especially hurting medical care in rural areas.
The attorneys general cite the absurdity of government law that “permits COVID-positive employees to return to work, even if they are still testing positive, while the IFR [Interim Final Rule for health care workers] prohibits COVID-negative unvaccinated individuals from working in covered facilities at all, unless they obtain an exemption.”
The brief warns that with the decrease in healthcare workers due to the vaccine mandate, “America’s most vulnerable populations will lose access to necessary medical care.” Even “CMS acknowledges that there are currently ‘endemic staff shortages for all categories of employees at almost all kinds of healthcare providers and suppliers.’” This will be exacerbated when more employees leave after the mandate goes into effect. They cite statistics such as nursing home staffing shortages exceeding 45% in Georgia, Idaho, and Utah.
The attorneys general also assert that the mandate violates the Spending Clause, the Anti-Commandeering Doctrine, the Nondelegation Doctrine, and the Tenth Amendment. Several states now have laws in place banning discrimination based on vaccination status, conflicting with the rule.
The brief notes that President Joe Biden initially said in late 2020 that “he ‘d[id]n’t think [vaccines] should be mandatory’ and ‘wouldn’t demand it be mandatory.’” But in September 2021, he admitted that “his ‘patience’ began ‘wearing thin’ with those ‘who haven’t gotten vaccinated.’”
The mandate’s deadline for healthcare workers to receive at least one shot of the COVID-19 vaccine is Feb. 14.
COVID-19 has greatly receded around the country. Only 396 people died on Feb. 6 nationwide, in contrast to 2,662 who died last year on Feb. 6. Democratic governors and mayors are gradually eliminating restrictions. Democratic Mayor Lori Lightfoot ordered Chicago teachers to return to in-person teaching this year, and both Democratic New Jersey Governor Phil Murphy and Democratic Delaware Governor John Carney are ending mask mandates in schools.
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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 “Mark Brnovich” by Mark Brnovich.
