LAS VEGAS (CN) — A Ninth Circuit panel on Tuesday took up the question of whether the Biden administration's Covid vaccine mandate exceeded the executive branch's authority.
Then-Arizona Attorney General Mark Brnovich sued Biden, the U.S. government and various other agencies after Biden’s announcement that all federal employees and contractors, along with employees of private employers with 100 or more workers, must receive the Covid-19 vaccine, and that government agencies can only do business with contractors that follow to Covid-19 guidelines. Brnovich and the state of Arizona claimed Biden’s order violated the Procurement Act, which gives the president power to regulate government agencies’ spending in a way that “advances economy and efficiency” of the nation.
Current Arizona Attorney General Kris Mayes took over representing the office as a plaintiff when she took office in January.
U.S. District Judge Michael Liburdi ruled in favor of the plaintiffs on the Procurement Act count, permanently enjoining the order from being enforced in Arizona as of Feb. 10.
U.S. Attorney David Peterson told a three-judge Ninth Circuit panel Tuesday that the injunction was “an abuse of discretion” because the act didn’t violate the Procurement Act at all.
“Presidents have consistently exercised authority in this way,” Peterson said. He offered former President John F. Kennedy’s antidiscrimination order of 1955 as an example of a president acting within the authority given to him by the Procurement Act.
U.S. Circuit Judge Richard Clifton, a George W. Bush appointee, offered Bush’s 2008 E-Verify order as another example of a president acting without express permission from Congress.
Peterson also argued that typically a plaintiff needs to “show a concrete injury” for a judge to order an injunction. Because the plaintiffs have not, Peterson said, the injunction can’t be applied as broadly as it is.
Because Arizona law permits private employers to require vaccines, so long as there is a religious exemption available, Peterson argued the injunction, if upheld, should only be applied to government contracts.
“There just isn’t any conflict at all in Arizona law,” he said about private employers. “Arizona law permits precisely what the mandate requires.”
Clifton asked whether the case is moot since the federal government is no longer enforcing the mandate.
“It still poses a problem to confirm the district court’s injunction,” Peterson said.
Alexander Samuels, an attorney representing the state of Arizona, maintained that Biden’s mandate violated the Procurement Act. He said the situation is different from the actions of JFK and Bush that were given as examples.
“This targets employee behavior rather than employer behavior,” he told the panel. Even Bush’s E-Verify order, which required employers to verify a person’s citizenship status before hiring them, imposed a direct action on the employers doing the verification rather than employees being verified, he said.
But it’s the employees, not the employers, whose actions determine “economy and efficiency” of an organization, countered U.S. Judge Mark Bennett, a Donald Trump appointee.
Samuels agreed, but maintained that the order was an overstep of authority because the action employees would be required to take isn’t directly work-related.
As Bennett put it, the vaccine can’t be turned off when employees leave work at the end of the day.
The Arizona Legislature and Chamber of Commerce intervened in the case, siding with the state.
Attorney Corey Langhopper, representing the Legislature, characterized Biden’s order as “an injury to the power of the state,” because he went against how the state would have acted.
“That’s unremarkable,” Clifton replied. “That will always happen when the federal government exercises its authority in a way that’s inconsistent with what the state itself would do.
“The state of Arizona’s police power does not trump the authority of the federal government.”
U.S. Circuit Judge Roopali Desai, a Biden appointee, rounded out the Ninth Circuit panel.
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