The Daily Signal - Arizona AG Mark Brnovich Talks Suing Biden Over Vaccine Mandate

Episode Date: September 17, 2021

President Joe Biden’s vaccine mandate is unconstitutional, Arizona Attorney General Mark Brnovich says.  Brnovich filed a lawsuit against the president and other Biden administration officials on Tuesday, arguing that the vaccine mandate is an assault on state sovereignty.  "[W]e know from reading Federalist 45 and Federalist 51 that people like James Madison, who wrote the Constitution, expected the states to push back against the federal government," Brnovich says. The attorney general, a Republican, also says, “Nowhere in the Constitution does it provide or does it allow the president or the federal government to require any sort of vaccines." Last week, Biden signed an executive order mandating the vaccination of all federal employees and contract workers. The president also directed the Department of Labor to write a rule mandating all organizations with 100 employees or more to require all their employees be vaccinated or tested weekly.  Brnovich says the president’s actions not only violate American freedoms, but also the equal protection clause of the Constitution. The Arizona attorney general joins “The Daily Signal Podcast” to explain what he hopes to accomplish through the suit. We also cover these stories: Idaho puts in place crisis standards of care throughout the state, citing the number of COVID-19 patients requiring hospitalization. After an article from The Daily Signal and a press release from The Heritage Foundation, online retailer Amazon rescinds an ad ban for a new book released by Heritage Foundation scholar Mike Gonzalez.  According to a report by the Department of Homeland Security’s Office of Inspector General, migrants, staff, and border communities were exposed to greater risks of COVID-19 infection by the department’s failure to adequately screen incoming migrants for the disease. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, September 17th. I'm Kate Trinco. And I'm Doug Blair. Arizona Attorney General Mark Bernovich is suing President Joe Biden over the vaccine mandate. Bernovich argues that the president's mandate is in violation of constitutional principles. Bernovich joins the Daily Signal podcast today to explain what he ultimately hopes to accomplish through the lawsuit. And don't forget, if you enjoy this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts. and please encourage others to subscribe.

And now on to today's top news. According to a report released Wednesday by the Department of Homeland Security's Office of Inspector General, migrants, staff, and border communities were exposed to greater risks of COVID-19 infection by the department's failure to adequately screen incoming migrants for the disease. The Inspector General came to this conclusion by reviewing the apprehension, detention, and release of illegal migrants by federal agencies, including the Department of Homeland Security and the Customs in Border Patrol, or CBP, from March through May. In the report, the Inspector General noted,

the COVID-19 testing process for family units post-CBP custody is not effective because municipalities cannot force families to isolate for the required quarantine period. Extended time in custody of migrants leads to overcapacity and overcrowding at Border Patrol stations. The report added, migrants are constantly reminded of COVID-19 risk, but choose not to social distance or wear provided masks. Currently, CBP's COVID-19 response protocols don't require the agency to conduct COVID-19 testing for detained migrants. Local public health clinics and hospitals are used to test symptomatic individuals. As a result of the report's finding, the Inspector General recommended that Department of Homeland Security Secretary Alejandro Mayorkas

and the Department's chief medical officer look into improve. the COVID-19 response framework and research methods to improve it. Idaho has put in place crisis standards of care throughout the state, citing the number of COVID-19 patients requiring hospitalization. Idaho Department of Health and Welfare Director Dave Jepison said in a statement, the situation is dire. We don't have enough resources to adequately treat the patients in our hospitals, whether you are there for COVID-19 or a heart attack or

because of a car accident. According to a press release from the agency, crisis standards of care are guidelines that help health care providers and systems decide how to deliver the best care possible under the extraordinary circumstances of an overwhelming disaster or public health emergency. The guidelines may be used

when there are not enough health care resources to provide the usual standard of care to people who need it. The goal of crisis standards of care is to extend care to as many patients as possible and save as many lives as possible. When crisis standards of care are in effect, people who need medical care may get care that is different from what they expect. For example, patients admitted to the hospital may find that hospital beds are not available or are in repurpose rooms, such as a conference room, or that

needed equipment is not available. They may have to wait for a bed to open, or be moved to another hospital in or out of state that has the resources they need. Or they might not be prioritized for the limited resources that are available. In other words, someone who is otherwise healthy and would recover more rapidly may get treated or have access to a ventilator before someone who is not likely to recover. The agency says the standards only apply to state hospitals that are overcrowded. After an article from the Daily Signal and a press release from the Heritage Foundation, online retailer Amazon rescinded an ad ban for a new book released by Heritage Scholar Mike Gonzalez.

The Heritage Foundation is the parent organization of the Daily Signal. The initial incident occurred when the Heritage Foundation attempted to buy an ad for Gonzalez's book, only to find that Amazon had blocked the ad from its website, citing compliance issues with Amazon's creative acceptance policies. Amazon said it would not allow ads for the book because content that revolves around controversial or highly debated social topics is not permitted. On Thursday morning, Amazon notified the Heritage Foundation that it had reversed course, saying, our policies were inaccurately enforced, and the book is now being advertised. We are providing training to ensure our teams are clear on our policies. BLM, the making of a new Marxist revolution, is Gonzalez's latest book and seeks to answer questions about the black,

Matter Movement and its leaders. In a quote to the daily signal prior to Amazon's reversal, Gonzalez said, the American people deserve answers to those questions, especially after the 630 or more riots that left our cities burning, businesses destroyed, and billions in damage, and Americans dead. This is not the first time heritage-related products have been censored by Amazon. Earlier this year, the retailer stopped selling when Harry became Sally, responding to the transgender moment by former Heritage Senior Research Fellow Ryan T. Anderson, who is now president of the Washington-based ethics and public policy center. Now stay tuned for Virginia Allen's conversation with Arizona Attorney General Mark Bernovich as we discuss his lawsuit against

President Joe Biden and the vaccine mandate. We're all guilty of it. Spending too much time watching silly videos on the internet. But it's 2021. Maybe it's time for a change. At the Heritage Foundation, channel, you'll find videos that both entertain and educate, including virtual events featuring the biggest names in American politics, original explainers and documentaries, and heritage experts diving deep on topics like election integrity, China, and other threats to our democracy. All brought to you by the nation's most broadly supported Public Policy Research Institute. Start watching now at heritage.org slash you. YouTube. And don't forget to subscribe and share. It is my honor to be joined by Arizona Attorney General Mark

Bernovich. Attorney General, thank you so much for being here. Thank you, Virginia, for having me. And hello to all my friends out there in Heritage World, including John and Hans. Oh, it's a real, real pleasure to have you here to have you back on the show. Last week, President Joe Biden signed an executive order mandating that all federal employees and contract workers, must be vaccinated. The president also directed the Department of Labor to write a rule mandating that organizations with 100 employees or more need to either require all their employees to be vaccinated or be tested weekly. Attorney General, in response to the president's mandate, you filed a lawsuit against President Joe Biden and other members of the Biden administration. You argue that this

vaccine mandate is unconstitutional. Why do you think it's unconstitutional? Well, Virginia, let me give you a long answer, I had a short answer. As you know, we've talked about this before, is that I'm a first generation American and, you know, my family fled communism. And when your family has just not only studied history but lived it, you have a great appreciation for how unique freedom and liberty is. And that how important this framework we have in our country with the Constitution and the rule of law. And so I have been a big protector and defender of the rule of law my entire career. And so whenever there's any sort of legal issues that come up, my first question always is, what does the Constitution say?

What does the law say? And so, as you know, I have filed multiple lawsuits against the federal government, even going back to my Goldwater days, when it's come to issues involving federalism and state sovereignty. And so when the Biden administration issues a federal vaccine mandate, and that's That's what it is. My first analysis isn't, well, is that good? Is it bad? It's, well, what does the Constitution say, right?

What does the Constitution say? And nowhere, nowhere in the Constitution does it provide or does it allow the president or the federal government to require any sort of vaccines or for you to put anything in your body. You know, and I know all the folks in Heritage World appreciate that, you know, the federal government was designed to be a government of limited powers. And we know from reading Federalist 45 and Federalist 51 that people like James Madison that wrote the Constitution expected the states to push back against the federal government.

And individual rights and liberties, police powers, public health, safety, welfare were designed to be left to the states. And so we argue, and what I've said is, A, the federal government, and especially one person, the president, does not have the power to mandate any sort of, you know, vaccine. And secondly, even if this administration somehow could do that, they can't do it in a manner that's inconsistent with the Constitution. And by literally exempting, you know, the millions of people that have crossed the border illegally, by giving them the option whether to opt out, but not providing that same option to U.S. citizens, they are clearly violating the Equal Protection Clause of the Constitution. And it absolutely breaks my heart to say this, but apparently the Biden administration cares more about people. in Central America in preserving their rights and liberties, does it, didn't they do about preserving the rights and liberties of hardworking American taxpayers?

You know, I think that argument about the Equal Protection Clause is really fascinating. I want to talk about that more in just a moment. But first, I want to mention on Tuesday, you said during a press call, quote, this lawsuit is about federalism, constitutional principles, and the fact that the Biden administration has no authority under the Constitution to mandate. COVID-19 vaccines, period. Explain why federalism is important, is such an important factor in this argument.

First and foremost, we always have to remember that the states created the federal government. And a lot of times, you know, people learn in like high school, or they used to at least, you know, you learn in school that, you know, we have the separation of powers and kids are taught, well, it's the judicial and the executive legislative branch, and that's where, you know, the separation of powers

is designed to, you know, make sure no one becomes tyrannical or too big. But the ultimate check on federal authority and the ultimate separation of powers is that the states, the states were designed to be a check on the federal government. And that there's this fundamental underlying premise that the framers understood, and we should understand is that government doesn't give us our rights. Our rights come from us from the creator, from God. And governments are instituted and designed to protect those rights.

And the Constitution was written, and the framers had in mind that the federal government only had the powers and could only exercise their enumerated powers. And people like James Madison used to talk about the fact that rights and powers are just different sides of the same coin. Because they understood that the less power the federal government had, the more rights individuals had. And so we've kind of lost track of this. And especially, you know, the progressive movement, you know, Woodrow Wilson. And as that accelerated, this kind of different philosophy arose that, wait a minute, if only we have the experts, if only we have the right people running government, if only we create this bureaucratic state with more federal agencies, they'll know what to do best. And they can decide and pick and choose which rights and, you know, to have to which people. And that has dramatically led to the acceleration of power in Washington, D.C.

And as power gets concentrated in Washington, D.C., it becomes more, it becomes unaccountable. it becomes bigger and bigger, and that eventually it becomes tyrannical. And that's why these vaccine mandates, it's so important to push back with every, you know, weapon or every tool we have in our toolbox. Because if you allow one individual, something that not even King George could have dreamed of, one individual to dictate to you or anyone else that you have to inject something in your body, that you have to affirmatively get a medical treatment, then that means that the power of the president is unfettered.

It's not tethered in the Constitution. it's not even tethered in existing law. So there's no statutory authority for what he's doing. But more importantly, there's no constitutional authority for what he's doing. And I do think that if OSHA ends up promulgating rules, which they're going to, I think those are all going to be constitutionally suspect. Now, we have heard arguments some saying that there actually is precedent. They've referenced the 1905 Supreme Court ruling, which is 7 to 2 in the case of Jacobson v. Massachusetts.

in that ruling, the city of Cambridge, Massachusetts was declared that they could find individuals who refuse to take a smallpox vaccine. Is there a difference between that ruling about 120 years ago and what we're seeing today? Absolutely. And it's once again coming back to first principles in federalism, a republic if we can keep it. And the key distinction right there in the Jacobson case is it was a state. And traditionally, the framers and our Constitution provides that issues of public health, safety welfare, exercise of what constitutes traditional police powers was something that was going to be left to the states.

So regardless of what you think about what we should or shouldn't do with COVID and pandemics and, you know, disease outbreaks, The bottom line is that the federal government does not have the authority, and it doesn't have the authority, even under the plain reading of Jacobson to do that. Second thing, I think it's important to point out in that case itself, it was like a $5 fine. It was like a $5 one-time fine. And, you know, the reality is that if you were presenting people with an option of saying, okay, you can either get the vaccine or have some de minimis penalty, a one-time penalty, you know, that's maybe a real choice. But what the Biden administration is doing is basically saying to people that you're going to lose your job, you're going to lose your livelihood. You may lose a multi-million dollar government contract. You may not be able to provide health care to elderly and vulnerable patients if you're a doctor, all because Joe Biden thinks he knows what's best for you. So that is fundamentally different from Jacobson.

And so I think that there's a misplaced reliance on that. And just as we're talking here, Virginia, I just couldn't help but think back. You know, I remember even around that time period, you had other cases like Champion v. Ames, which went up the Supreme Court. And I think about that, that dealt with gambling and gaming. And there was a Congress that passed a law that prohibited the interstate transportation of lottery tickets. And it was a one vote decision. And the Supreme Court at that time struggled with whether the federal government could even prohibit the transportation of illegal lottery tickets across state line by the U.S. Postal Service because that was an exercise of police power.

So we've come a long way in 100 years. The people that framed our Constitution and even 100 years ago, the Supreme, Court understood that the police powers of the federal government were extremely limited, and the police powers were supposed to reside with the states. And my last caveat to this is think about this, is that where the president's powers are at their highest, when it comes to, you know, the commander-in-chief authority, when it comes to securing our border, where there's actually statutes and the Constitution provides for that authority, the Biden administration is clearly abdicated.

In fact, they're refusing to follow existing. In fact, we were just led an amicus in the Fifth Circuit case. We have multiple lawsuits against the Biden administration where we argue they're not filing, they're not following existing federal law, which they're clearly not. So when they're supposed to be following the law in the Constitution, they don't want to, but then they want to go ahead and cavalierly or unilaterally pick and choose how they can exercise their federal authority completely inconsistent with the Constitution. And I'm sorry, I feel like I'm filibustering here, but let me just add one last thing

this. I think you know or maybe your listeners know that I also have a lawsuit against the Biden administration. We filed against Secretary Yellen, which dealt with the COVID relief bill. You know, once again, a massive transfer of wealth and power to D.C., but in that COVID relief bill, it provides that if you're a state and you get COVID relief money, you can't cut state taxes. So think about the dishonest and intellectually inconsistent arguments about what the Biden administration is doing. The federal government can send someone a $14.14 stimulus check, but the state of Arizona can't cut your taxes by $1,400? Why do you think that is? I would submit to you that's because it's all about the federal

government trying to control you and your livelihood. And what our lawsuit argues is that this federal government can't do that. It violates traditional notions of anti-commoderring. In fact, the recent, you know, PASPA case, the Amtured Sports Protection Act, were recited, once again with the states against the federal government when it came to whether the states could commandeer the states over gambling issues. But there are all sorts of these issues where if you look at the Ninth Amendment and the Tenth Amendment where it clearly sets forth the powers of the federal government are enumerated and limited, the Biden administration is just blowing past those barriers. And so we're fighting them on multiple fronts and this vaccine mandate is just

the latest one. And the other part of your lawsuit, as you mentioned earlier, it has to do with the equal protection clause of the Constitution. Explain that aspect of the suit, if you would. Well, our Constitution provides that everyone is equal under the law. In fact, I think that's the reason why so many people want to come to the United States. You know, we don't need the Biden administration spending $300 million to figure that out. They want to come here because we're the greatest country, and we are the greatest country because we have a constitution, we have stability, and we have the rule of law. And so everyone is equal under the law. But what the Biden administration is done is they basically said that if you've come here illegally, you've crossed your southern

border illegally, you know, they may put you up in a hotel in Scottsdale, they may put you on an airplane and send you to Kansas or Virginia, Missouri, or wherever else, but you don't have to, you have the option if you're here illegally, whether to take the vaccine or not, where once again, the Biden administration probably has more authority, but if you're a U.S. citizen, you have to get the vaccine. And make no mistake about it, Virginia. I mean, this is just the camel's nose under the tent. The Biden administration is mandating this now, but you see they are going to end up mandating this for everyone because this is about a massive federal power grab over controlling our lives. And so we in our lawsuit point out the inconsistency and the unconstitutionality of frankly

treating non-citizens better than citizens. But make no mistake about it. No one, no one should be required to get the vaccine. But I think that by us pointing that out and using every weapon in our toolbox to try to fight back against the Biden administration, we have shown the bankruptcy of what they're doing and their ideas. You filed the lawsuit with the U.S. District Court of Arizona on Tuesday. Ultimately, what are you asking the courts for? What do you want to achieve through this lawsuit? Well, we're asking the court to simply enjoin the Biden administration from mandating the vaccine for anyone, whether they're a federal. employee or not. And, you know, frankly, it breaks my heart because I've had people reach out to me.

Look, I'm a, you know, middle class kid. I live in the same neighbor. I grew up here in Arizona. And I've had so many folks, you know, teachers, firefighters, you know, law enforcement folks, reach out and say, oh my gosh, you know, this will affect me, even though I'm not a federal employee because maybe their business receives federal money or they're a federal contractor. And so there are a lot of folks that are really scared. They're really nervous. They worry not only about the constitutional arguments, but there's a lot of been a lot of uncertainty

because of the Biden administration said or hasn't said as far as the pandemic. And it worries folks. And there's a lot of uncertainty now. There's a lot of inconsistency. And so I'm going to do everything I can to push back against the Biden administration and its unconstitutional mandates. This is not the final step.

This is the first step. This is the first salvo, or it's a continuing salvo, at least on my part, to push back against federal overreach and to make sure that we have a federal government that exercises its authority in a way that's consistent with the Constitution. Because all of us need to remember that there are two maladies facing this country right now. One was created in a Chinese lab and the other ones emanating from the D.C. swamp. And we need to do everything we can to push back and fight against this overreach from coming out of Washington. Attorney General, last question before we let you go. I know that there's been talk of maybe other states joining this lawsuit or filing other similar lawsuits in response to this vaccine mandate. Do you know where we stand with that if there are other states that are getting involved in the same way you have?

Yeah, me and my colleagues actually just sent a letter to the Biden administration laying out why what they are proposing is. constitutionally suspect. I do know that we are working even with other states, some of my partner AGs to develop more legal theories, more lawsuits. So we, we that believe in the Constitution, and this isn't political, it's about the Constitution. If you believe in federalism, if you believe in individual liberty, if you believe in economic freedom and the dignity of every human being, every one of us needs to be fighting back and pushing back against this drastic power grass. by the Biden administration. Attorney General, thank you so much for your time today.

We really appreciate you. Thank you, Virginia. And that'll do it for today's episode. Thanks for listening to The Daily Signal Podcast. You can find The Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and IHeart Radio. Please be sure to leave us a review and a five-star rating on Apple Podcasts. And please encourage others to subscribe.

The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Virginia Allen and Kate Trinco, sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, please visit DailySignal.com.