Immediately following last week’s rulings from the Supreme Court that set aside Joe Biden’s vaccine mandate on larger private employers and upheld his mandate on healthcare workers, the Treasury Department threatened Arizona that it would block COVID-19 federal funds if the state does not relent on mask mandates in its public schools. The Biden Administration told the state that it must eliminate a requirement from its grant applications that schools do not create a masking rule.
The Arizona ultimatum involves the same ultimate questions of federal authority touched on by the vaccine cases decided last week by the high court. The situation in Arizona began last August when Republican Governor Doug Ducey announced the state was starting two new grant programs that would be funded in part by COVID relief funds provided by the federal American Rescue Plan.
One of the Arizona grant programs funds families for educational expenses when their zoned public school isolates children with COVID restrictions, including mask use or discrimination against unvaccinated students. The other provides direct funding to public and charter schools, but conditions grants on schools not mandating face coverings.
The Biden White House has attacked the Arizona programs, beginning with a warning letter to the governor to “remediate” the rules against mask mandates applicable to the grants. The Treasury Department stepped in last week, telling the state that it must change the grants to comply with the “purpose and requirements.”
Following that demand, Ducey told reporters that his message to the Biden administration is, “number one, we will see you in court.” The governor’s communications director affirmed over the weekend that Ducey has “no intention of backing down.”
As the dispute makes its way through the federal courts, the Supreme Court rulings from last week will be crucial to the issues in the case. In both vaccine mandate cases, the question of whether Congress has delegated the power was claimed by the White House and administrative agencies.
Therefore, the issue in the Arizona matter should be whether the Treasury has the authority under the American Rescue Plan to issue its “final rule” about conditioning funding on a school masking mandate. The final rule arguably went well beyond the mission of not undermining the stop of the spread of COVID-19. The Treasury rule appears to go further by demanding that states not work against CDC recommendations.
As the swing votes on the two vaccine cases last week, Chief Justice John Roberts and Justice Brett Kavanaugh would draw the most attention if the Arizona dispute ultimately lands in the Supreme Court. The disagreement could further refine the situation when federal agencies act as legislators in violation of the separation of powers demanded by our Constitution.