Tucson should stand its ground on the city’s vaccine mandate

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The city of Tucson could do the state a service by challenging Governor Doug Ducey and Attorney General Mark Brnovich about their employee vaccination mandate. This could be a vehicle for useful clarification of a wide variety of issues relating to specific powers and responsibilities.

There are a lot of moving parts here, so be patient with me.

How did we get here? It’s a tangled web

Last August, Tucson made a policy that all of its employees must be vaccinated against COVID-19, pending religious objections or medical contraindications.

State lawmakers had passed a law banning vaccine mandates from local governments, but that law had not yet come into effect. The governor issued an executive order duplicating the ban.

A state legislature submitted a so-called SB 1487 investigation request to the AG. Under this law, any legislator can require the AG to investigate a measure by a local government to determine whether it violates state law. If the AG determines this, state revenues are to be withheld. The only remedy a local government has is through the courts.

Brnovich issued a statement that Tucson’s vaccine mandate was in violation of state law, citing both the legislature-passed bill and Ducey’s executive order. Tucson has suspended enforcement of the requirement.

Then a Superior Court judge ruled that the legal ban was unconstitutional, a non-budgetary matter that was crammed into a budget balancing bill. The Supreme Court has approved an appeal.

Following the Superior Court’s decision, Tucson continued to enforce its vaccine requirements. Recently, the city council decided to fire employees who failed to comply.

What are the limits of Ducey’s emergency powers?

Ducey hissed on social media and his general counsel fired a warning letter that has absolutely no legal force or status. The governor’s office is not a law enforcement agency.

The possible legal questions are almost limitless here. The one that fascinates me most is about the governor’s authority in a public health emergency.

Ducey has used virtually uncontrolled authority to rule through executive ordinance to cope with the COVID-19 pandemic. Counties and cities also have legal emergency agencies that can be construed to apply to managing a pandemic. Ducey has claimed he can pre-empt the local government’s statutory emergency services.

In this case, however, Ducey does not issue an implementing regulation to protect public health. He issues an order to prevent a local government from taking any action it deems appropriate to operate safely and protect public health.

The ban on vaccination regulations is not a measure to improve or protect public health. It expresses a philosophical position about the relationship between a government and its employees. It’s hard to believe that Ducey’s COVID-19 emergency power also extends to enforcing his philosophical preferences.

Can Brovich Really Endanger Government Revenues?

If Brnovich threatens Tucson’s revenue again, he can only rely on a dubious order from the executive. The law remains void while the state Supreme Court examines the appeal.

Brnovich has a very comprehensive understanding of “constitutional law”, the violation of which triggers the penalty. Pace Brnovich, the context of SB 1487 seems to suggest that only a violation of a legal law is being considered.

When Maricopa County and a couple of state senators were dagged over a subpoena related to the farce electoral test, Brnovich said the subpoena was “state law” that gave rise to the sentence. The Maricopa County reached an agreement, but this case would be a very useful tool to challenge Brnovich’s far-reaching conception of what constitutes state law in the sense of SB 1487, in which all counties and cities of the state have a large share.

Should this be a decision in Arizona or Tucson?

If Tucson wanted to swing for the fences, it could challenge the constitutionality of SB 1487 itself on grounds of separation of powers. It empowers individual legislators to command the resources of the Attorney General, a member of the executive branch. And that of the country’s Supreme Court, which is instructed to give such cases priority over all others.

The bans of the vaccine mandate, whether by law or by regulation, are also contestable, as this is not a matter for the state. The courts are of the opinion that charter cities avoid sovereign governance that the state government cannot penetrate. You can hardly imagine anything more local than the requirements to work for a particular city.

If Tucson chooses to hold its own, it will have plenty of ground to stand on.

You can reach Robb at robert.robb@arizonarepublic.com.

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