The key question Joe Biden must answer in his debut UN General Assembly speech

Can’t wait to see what happens here. fls

Analysis by Stephen Collinson, CNN

Updated 5:23 AM ET, Tue September 21, 2021

This will be most consequential week of Biden’s presidencyCNNThis will be most consequential week of Biden’s presidency 01:53

(CNN)As President Joe Biden makes his presidential debut at the United Nations General Assembly on Tuesday, the question is not whether America wants to lead the world any longer, but whether it can.During his inaugural address, Biden promised that “we will not lead merely by the example of our power, but by the power of our example.” But eight months on, that shining example is looking a little tarnished — even as the US remains the indispensable anchor of Western democracy.Increasing doubts surround Biden’s self-described foreign policy expertise and his capacity to both quell America’s raging domestic political chaos and to put a superpower’s stamp on a world bristling with challenges to US authority.

Global uncertainty about Biden’s presidency runs deeper than the debate over whether he is pushing a kinder version of ex-President Donald Trump’s “America First” creed, following the chaotic US exit from Afghanistan and a spat with France after the US and United Kingdom subverted their longtime ally’s submarine deal with Australia.

Trump used his UN addresses to lay out his vision of a world of individual sovereign powers individually pursuing self-interest. Biden, for all his current domestic focus, has long been an internationalist committed to US alliances.

But for 70 years following World War II, the United States for the most part offered strength, predictability and strategic certainty. Its might at home translated to power abroad and it bankrolled and bolstered the West against totalitarian threats to democracy, despite periods of domestic political strife.That ended with Trump’s erratic, temperamental presidency, which put US postwar alliances in Europe and Asia to their greatest test. And while Biden lacks the ex-President’s volcanic character, a new age of friendship with allies did not suddenly dawn with a new leader in the Oval Office. The new President has exacerbated, rather than eradicated, questions about US staying power abroad in defense of its vital national interests. And amid China’s rise, Russia’s power games and emerging threats like cyberwarfare and climate change, America’s reputation as a bulwark against global threats is in doubt.

Doubts over Biden’s vow that ‘America is back’

Biden set to address world leaders at the UN General Assembly

Biden set to address world leaders at the UN General AssemblyThe United States still has plenty of advantages. Its easy access to capital powers technological innovation. A young, diverse population is a growth engine. Its state-of-the-art military technology has few peers. Millions want a piece of US culture and markets — the fury of European powers over pandemic travel restrictions for vaccinated citizens, which the administration only announced on Monday it would soon lift, proves that.But America’s fierce political polarization, supercharged by Trump’s presidency, will still undercut Biden’s vows Tuesday that “America is back.”When he warns that democracy is in peril around the world, Biden will do so from the extraordinary position of being falsely accused by his predecessor of stealing the last election. US presidents usually use the UN to blast coup attempts. Biden is the first to appear before the world body in the wake of a homegrown assault on the world’s most important democracy, following the Capitol Insurrection by Trump supporters on January 6.Questions about American resolve abroad are only deepened by national divides that are broader now than since the Civil War. And if Trump does not return for the 2024 campaign, many US allies fear one of his acolytes will still win the White House.An eighth of the way through Biden’s term, the refusal of Trump to accept his defeat and successful attempts by Republican legislatures to suppress voting have only exacerbated concerns that US democracy may be yet to face its greatest threat.Some of the President’s own decisions may also undercut his speech.If he chooses to speak out in favor of human rights, including women’s rights — another plank of his foreign policy — his message will be weakened by harsh new Taliban restrictions imposed on women and girls following the withdrawal from Afghanistan. Pledges to pursue relentless “over the horizon” military action against terrorists will recall the tragedy of an Afghan family, including seven children, killed in a mistaken drone strike in Kabul. Biden’s vows to restore American alliances look less convincing amid the worst diplomatic showdown with France in decades and after what appeared to perfunctory consultations with allies over leaving Afghanistan.

How Washington could destabilize the world

Joe Biden's challenge at his first UN General Assembly: Convince allies he's not another Trump

Joe Biden’s challenge at his first UN General Assembly: Convince allies he’s not another TrumpUS economic might is a vital element of Washington’s power. But it could cause chaos within weeks since Republicans are refusing to agree to raise the nation’s borrowing limit, a crisis that could tip the US economy into default and the global economy into crisis.Biden’s attempts to lead the world in the battle against climate change risk being undone not by Republicans but his own Democratic Party. Splits between moderates and progressives are imperiling spending and infrastructure bills containing billions of dollars for a green economy and climate mitigation. If the US can’t set an example, the UN Climate Summit that will take place in Scotland in November could founder and worsen a coming age of extreme weather.Biden will speak at the United Nations amid a glaring lack of global leadership on another threat to humanity: the worst pandemic in 100 years. While the US led the way in developing vaccines in super-quick time and has bought hundreds of millions of doses for developing nations, vast areas of the world remain unvaccinated, meaning the pandemic is nowhere near over.American leadership is undermined by its own struggles with Covid-19. On Monday, it recorded its 675,000th death in the crisis, passing its total in the 1918 flu pandemic, as the virus exposed many of the county’s cultural and political chasms.”We have lost 100,000 Americans since April or May — almost all of them unvaccinated, almost all of those deaths preventable,” Dr. Peter Hotez, dean of Baylor College of Medicine’s National School of Tropical Medicine, told CNN’s Jake Tapper on Monday.

Foreign policy begins at home

President Joe Biden meets with United Nations Secretary General Antonio Guterres at the Intercontinental Barclay Hotel during the United Nations General Assembly, Monday, Sept. 20, 2021, in New York.

A boyband, Boris and Biden’s debut. UNGA gets underway 02:18Biden understands that domestic disunity and turmoil weaken the United States abroad. Secretary of State Antony Blinken spelled it out during his first major speech in office in March.”More than at any other time in my career — maybe in my lifetime — distinctions between domestic and foreign policy have simply fallen away,” Blinken said. “Our domestic renewal and our strength in the world are completely entwined.”Both Biden and Blinken believe that for foreign policy to be successful, it must receive buy-in from working- and middle-class Americans. The withdrawal from Afghanistan was a clear case of this approach in action, as Biden promised working Americans they’d no longer have to send their kids off to war.Meanwhile, Biden’s huge $3.5 trillion spending plan, currently in limbo on Capitol Hill, is stuffed with health care, education, home care and other social programs meant to restore American strength — literally, nation building at home. And increasingly, US economic, diplomatic, military and soft power is being trained across multiple sectors on the next great American mission: maintaining an edge over a rising Chinese superpower.To that end, Biden will host the leaders of Japan, India and Australia in Washington this week, in a summit of so-called Quad powers, in a rare show of continuity with the Trump administration, which pushed the grouping in an unmistakable message to Beijing.

Missteps and oblivion

Joe Biden's self-created image of foreign policy savvy has taken a serious blow

Joe Biden’s self-created image of foreign policy savvy has taken a serious blowOne surprise of the Biden era has been the ham-handedness of foreign policy management.The showdown with France was triggered by a US desire to quickly scale up its military posture in Asia in the face of China’s aggressive naval expansion. The deal among the US, UK and Australia — dubbed “AUKUS” — will see a fleet of new nuclear-powered submarines head down under and canceled France’s previous agreement to build conventional boats for Australia.But in bolstering one alliance, Washington badly damaged another. France saw the deal as a betrayal by its anglophone partners and recalled its ambassadors to Canberra and Washington. While Biden is expected to try to ease tensions in a phone call with French President Emmanuel Macron this week, the estrangement is bound to fuel a belief in Europe that — in its zeal to meet the rising threat from China — the US is turning away from Europe.

It’s hard to believe that there wasn’t a way for the Biden administration to pursue its goals in Asia without insulting a friend in Europe. The chaos of the Afghan withdrawal, which left the US effectively relying on its Taliban enemies of 20 years to secure Kabul’s airport — a scenario that resulted in the deaths of 13 American service personnel and more than 170 others in a suicide bombing — was emblematic of a poorly planned operation, even if the military managed to extract more than 120,000 US citizens and allies. After the withdrawal, Biden barely mentioned the sacrifices of US allies in a war they joined to defend the US after the September 11 attacks.Ultimately, however, US allies have little choice but to learn how to deal with the Biden team, accept its missteps and adapt to its new foreign policy goals. Because if the US can’t or won’t lead, who will?

Donald Trump’s Legal Troubles: A Guide

Donald Trump’s Legal Troubles: A Guide

From tax evasion to election tampering to inciting an insurrection, a comprehensive list of the criminal and civil allegations against the former president


  • Blog question: Why does this seem to be taking so long?
WASHINGTON, DC - JANUARY 12: U.S. President Donald Trump exits the White House to walk toward Marine One on the South Lawn on January 12, 2021 in Washington, DC. Following last week's deadly pro-Trump riot on Capitol Hill, President Trump is making his first public appearance with a trip to the border town of Alamo, Texas to view the partial construction of the wall along the U.S.-Mexico border. (Photo by Drew Angerer/Getty Images)

Donald Trump is no stranger to legal trouble, but it’s never been anything he couldn’t solve with his checkbook. Just after he won the White House, Trump agreed to pay $25 million to settle charges that Trump University swindled thousands of students. He later paid another $2 million for misusing his charitable foundation, which was shuttered after authorities documented a “shocking pattern of illegality” and “repeated and willful self-dealing.”

But Trump isn’t going to be able to buy his way out of criminal charges, which he could soon be facing now that he’s the subject of an array of serious criminal investigations — including over shady business dealings and real-estate tax arrangements, as well as his incitement of the January 6th siege of the Capitol. (Trump has made light of the probes against him, writing: “There is nothing more corrupt than an investigation that is in desperate search of a crime.”)


How the War on Terror Gave Us TrumpTrump Thinks the General Who Lost the Civil War Definitely Would Have Won the Afghanistan War

Trump also faces myriad civil actions, ranging from allegations he violated the Voting Rights Act and the Ku Klux Klan Act (which prohibits the intimidation of public officials), to multiple claims that he defrauded people, including a family member, an investor that bought into his troubled hotel ventures, and “economically marginalized people” looking to “pursue the American Dream.”

The prosecution of a former president would be unprecedented, and the notion that Trump could face dire consequences is hard to fathom given his ability to elude them. As president, he was shielded from prosecution; this is no longer the case. “This is a significant concern for him because he’s no longer in office,” says Rebecca Roiphe, an a professor at New York Law School and former assistant DA in Manhattan. “If he committed a crime like anyone else, I don’t exactly understand how he could escape it.”

Trump will still be able to cry “witch hunt” as the investigations continue to develop, leading some to believe his legal trouble could actually help him should he decide to run again in 2024. And in case you’re wondering, a federal conviction would not disqualify him from doing so.

Below, we cover the waterfront of Trump’s legal troubles:


Manhattan District Attorney

Manhattan DA Cyrus Vance battled all the way to the Supreme Court to obtain eight years worth of Trump’s tax returns and other records — reportedly comprising millions of pages of documents. Vance now has a team poring over these records, and the two-year investigation that began over hush-money payments to Stormy Daniels and Karen McDougal ahead of the 2016 election now appears to include potential bank and insurance fraud, as well as other potential financial crimes.

In May, a grand jury convened to hear evidence from prosecutors, a signal that the investigation could be entering its final stages. The DA’s office is zeroing in on longtime Trump Organization CFO Allen Weisselberg, probing whether he failed to pay taxes on fringe benefits he received from the company — including cars, apartments, and private school tuition for his grandchild. Prosecutors are also investigating whether Trump Organization COO Matthew Calamari enjoyed similar tax-free benefits, indicating the alleged illicit activity could be a company-wide issue. (Neither Weisselberg nor Calamari have commented on the probes or been formally accused of wrongdoing.)

On July 1st, the DA’s office charged Weisselberg and the Trump Organization with 15 counts of various financial crimes, including federal tax fraud, falsifying business records, grand larceny, and scheme conspiracy. The indictment described a 15-year scheme to provide tax-free benefits to top executives, including Weisselberg, who is alleged to have skirted paying over $1.7 million in taxes. “To put it bluntly, this was a sweeping and audacious illegal payments scheme,” Carey Dunne, general counsel for the Manhattan DA, said in court.

Weisselberg and the Trump Organization both pleaded not guilty, with the latter describing the charges as “politics.” A week after they were charged, the Trump Organization began removing Weisselberg from his leadership positions within the company, according to the Times.

Trump was not charged, but the “sweeping” nature of the alleged scheme could open him up to liability. “If this is the way the entire organization is run, then I think we’re getting into the realm where it’s far more dangerous for Trump himself,” says Roiphe, the former assistant DA. “As long as it’s rogue actors and he can push it off on them, then he’s fine. The more pervasive it is and the more people who have high-level responsibility are included, the more likely it is that he’s in some way involved.”

The question now is whether Weisselberg will flip on Trump. Weisselberg has so far refused to do so, but that could change if he’s indicted. “It’s one thing to be loyal to somebody, up until the point where you’re doing jail time for them,” says Roiphe. “It’s quite another when you’re facing that reality.”

New York Attorney General

The state of New York began investigating a civil fraud case against the Trump Organization for its real estate business practices in 2019. But in May of this year, the office of Attorney General Letitia James announced a serious evolution: “We have informed the Trump Organization that our investigation into the company is no longer purely civil in nature,” said spokesperson Fabien Levy. “We are now actively investigating the Trump Organization in a criminal capacity, along with the Manhattan DA.”

Collaboration between the two offices is unusual, but it makes sense considering the overlap in their probes. According to The New York Times, two assistant AGs from James’ office have joined the DA’s team, and James’ office is not conducting its own independent criminal investigation.

In addition to the Weisselberg issues, James has reportedly been investigating potential financial fraud relating to several Trump Organization properties, including the Seven Springs estate in Westchester County, New York. Trump bought the estate for $7.5 million in 1995, failed to turn it into a golf resort, and later claimed a $21 million tax break for conserving its grounds as open space. Trump is infamous for inflating the paper value of his assets, and he reportedly secured an appraisal that valued the full estate in excess of $56 million. Local authorities, by contrast, believed the entire property, Tudor-style mansion and all, was worth only $20 million, less than the deduction Trump claimed for the protected land.

James’ office is also said to be scrutinizing the Trump Tower in Chicago. One of Trump’s lenders reportedly forgave a debt of $100 million on the property in 2012, and authorities are looking into whether Trump paid the necessary taxes on the debt forgiveness. The finances of Trump Organization properties in Los Angeles (Trump National Golf Club) and New York City (40 Wall Street) also appear under the AG’s microscope.

It may seem like Trump is a sitting duck, but Roiphe, the former assistant DA, stresses the difficulties prosecutors will face. “There are a lot of these sorts of crimes that go unpunished,” she says. “There are times when you can be convinced 100 percent as a prosecutor that a crime has been committed, you can know who committed that crime, and you are incapable of bringing that case. It’s frustrating, but it’s the way it works.”

The greatest challenge is not demonstrating wrongdoing, but criminal intent. “It is extremely hard and extremely resource intensive to prove,” Roiphe adds. “There is still a chance that even if he did all of this, and orchestrated a company that was corrupt through and through, he might get away with it.”


Georgia (criminal)

In his crusade to overturn the results of the 2020 election and promote the Big Lie that Joe Biden’s victory was illegitimate, Trump turned up the pressure on Georgia election authorities. Fulton County DA Fani Willis is now investigating whether Trump pressuring Secretary of State Brad Raffensperger on a recorded phone call to “find” sufficient Trump votes to overturn the election violated state law, specifically: election fraud conspiracy, criminal solicitation of election fraud, and/or interference with elections duties.

Read letters sent by the DA announcing the investigation.

Michigan/NAACP (civil)

Voting rights activists in Michigan, joined by the NAACP, are suing Trump for conduct alleged to violate the Voting Rights Act. Trump’s Big Lie pressure campaign included lobbying Wayne County Republican officials against certifying the election totals for the jurisdiction that includes Detroit. The Voting Rights Act forbids the intimidation of voting officials. “[B]y exerting pressure on state and local officials,” the complaint reads, “defendants attempted to and did intimidate and or coerce state and local officials from aiding Plaintiffs and other residents of Detroit, Milwaukee, and other major cities with large Black populations from having their votes ‘counted properly and included in the appropriate totals of votes cast.’”

The suit seeks a declaration that Trump violated the Voting Rights Act and a restraining order forcing the former president to obtain court approval “prior to engaging in any activities related to recounts, certifications, or similar post-election activities.”

Read the complaint.


Washington, D.C., Attorney General (criminal)

The Attorney General for the District of Columbia announced a criminal investigation into the 45th president’s activities on January 6th, and is reportedly looking at bringing charges against Trump under a local statute that makes it “unlawful for a person to incite or provoke violence where there is a likelihood that such violence will ensue.” The charge reportedly carries a sentence of up to six months in jail.

U.S. Capitol Officers (civil)

Two Capitol police officers who were beaten, maced, poked with flag poles, and pinned against the doors of the Capitol have filed a civil suit against Trump for inciting the violence they endured. “As the leader of this violent mob,” their complaint reads, “Trump was in a position of extraordinary influence over his followers, who committed assault and battery“ on the officers. Conspiracy claims added to the suit allege Trump was in cahoots with the Proud Boys and the Oath Keepers, violent groups whose members stormed the Capitol. “Defendant Trump conspired with the Proud Boys and others to, among other things, incite an unlawful riot on January 6 with the goal of disrupting congressional certification of President Biden’s electoral victory,” it reads. The suit seeks compensatory and punitive damages.

Read the complaint.

Seven Capitol police officers in August filed a separate lawsuit alleging Trump others violated the Ku Klux Klan Act, which was passed during Reconstruction after the Civil War to beat back violent white supremacists in the South, and which forbids conspiracies “to prevent, by force, intimidation, or threat” U.S. officeholders from discharging their duties or forcing them to leave the location where those duties must be performed. The suit claims the defendants’ “unlawful efforts culminated in the January 6 mass attack on the United States Capitol and the brutal, physical assault of hundreds of law enforcement officers.” It also alleges that Trump worked “in concert” with far-right extremists to push the election lie that led to the attack.

Read the complaint.

Members of Congress (civil)

Rep. Bennie Thompson (D-Miss.) and the NAACP have filed a civil suit alleging a “violation of the Ku Klux Klan Act.” Thompson and the NAACP claim that “Defendants Trump, Giulini, Proud Boys and Oath Keepers plotted, coordinated and executed a common plan to prevent Congress from discharging its official duties in certifying the results of the presidential election.” The suit seeks a declaration that Trump violated the KKK Act and an order enjoining him from future violations.

Read the complaint.

Former presidential candidate Rep. Eric Swalwell (D-Calif.) has also sued Trump for inciting the insurrection. “Trump directly incited the violence at the Capitol that followed and then watched approvingly as the building was overrun,” the complaint reads. (Swalwell also names as defendants Donald Trump Jr., Rudy Giuliani, and GOP colleague Rep. Mo Brooks of Alabama, who spoke at the rally and whom Swalwell alleges “directly incited the violence at the Capitol that followed.”)

Read the complaint.


E. Jean Carroll (civil)

In 2019, E. Jean Carroll wrote a book claiming Trump sexually assaulted her in the mid-90s in a Bergdorf Goodman department store dressing room. Trump brushed off the accusation, claiming Carroll was “totally lying,” that he didn’t know her, and that the advice columnist and magazine journalist was “not my type.” Carroll sued for defamation. Trump got the Justice Department to stand in as his legal representation, arguing the allegedly defamatory conduct was committed as part of his official duties. Last October, a federal judge ruled the DOJ shouldn’t be standing in for Trump, writing that the president wasn’t a protected “employee” of the government under the statutes in question and that, “Even if he were such an ‘employee,’ President Trump’s allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment.” But the Trump DOJ took the case to federal appeals court. The Biden DOJ is now defending Trump’s claim that the alleged defamation was part of the president’s official conduct.

Carroll’s lawyer Robbie Kaplan tweeted: “The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward. Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type’ — as Donald Trump did here — is NOT the official act of an American president.” The suit seeks to force Trump “to retract any and all defamatory statements” as well as to pay compensatory and punitive damages.

Read the complaint.

Summer Zervos (civil)

Summer Zervos, a former contestant on The Apprentice, filed a suit alleging Trump defamed her in 2016 when he called her a liar after she accused him of sexual assault in 2007. Zervos was one of several women who publicly accused Trump of sexually predatory behavior prior to the 2016 election, claiming that he kissed and groped her without her consent on multiple occasions. Trump called her story “phony,” prompting the lawsuit. “Donald Trump lied again, and again, and again, and again,” the complaint reads. “In doing so, he used his national and international bully pulpit to make false factual statements to denigrate and verbally attack Ms. Zervos and the other women.”

Trump tried to block the suit, arguing that as president he was immune from legal action. The suit was hung up in the courts for the remainder of Trump’s time in office, but this March the New York State Court of Appeals ruled that it could proceed. The decision could result in Trump being forced to testify under oath. “Now as a private citizen, the defendant has no further excuse to delay justice from Ms. Zervos and we are eager to get back to the trial court and prove her claims,” said Zervos lawyer Beth Wilkinson, according to the Times.

Read the complaint.


Mary Trump, the former president’s niece and author of a tell-all book about her uncle, was an heir to the family fortune when patriarch Fred Trump died. After The New York Times’ 2018 expose about the trajectory of Donald Trump’s fortune and how he routinely manipulated the price of his assets, Mary realized she’d been bought out of her share of the Trump fortune unfavorably. She sued Donald and others in the family, alleging they’d carried out “a complex scheme to siphon funds away from her interests, conceal their grift, and deceive her about the true value of what she had inherited.” Mary, the daughter of Donald’s brother Fred Jr., accused Donald and her other relatives of having “willfully, egregiously, and repeatedly abused their position of trust” to rob her “in order to maximize their own profits.” The suit seeks compensatory and punitive damages.

Read the complaint.


The Attorney General of D.C. has sued Trump over diverting 2017 inauguration funds to Trump properties, alleging that the nonprofit inaugural committee “wasted approximately $1 million of charitable funds in overpayment” to Trump businesses that charged exorbitant rates, including $175,000 for a ballroom that usually rented for $5,000. The AG alleges “the Trump Entities … unconscionably benefited from nonprofit funds required to be used for the public good.” The suit seeks to have the ill-gotten gains from the Trump properties donated to public-serving nonprofits.

Read the complaint.


In 2018, the Trump family was hit with a class-action lawsuit from a group of anonymous Americans who claimed they were duped by Trump into joining a multi-level marketing scheme — run by a third party called ACN — which Trump was secretly paid to promote. (ACN, itself, is not being sued in this litigation.) The lawsuit alleges that Trump, his company, and his offspring executives Ivanka, Eric, and Don Jr. “operated a large and complex enterprise with a singular goal: to enrich themselves by systematically defrauding economically marginalized people looking to invest in their educations, start their own small businesses, and pursue the American Dream.” The suit asks for class-action status, which would allow others to join the litigation, and for “actual, compensatory, statutory [and] consequential damages.” It also seeks the “disgorgement of all ill gotten gains” by the Trumps.

Read the complaint.


The Trump Organization managed a 70-story, sail-shaped high-rise hotel and condo complex in Panama City from 2011 to 2018. In 2019, the investment group Ithaca Capital Partners filed a suit alleging it was fraudulently induced to buy a majority stake in the business by Trump, who’d warranted that the luxury complex was well maintained and successful as a business. In fact, the suit alleges, the Trump Organization was “grossly mismanaging its operations of the former Trump International Hotel & Tower Panama including causing intentional damage to the Hotel Amenities Units and failing to pay income taxes to the Panamanian government.” The suit seeks “not less than” $17 million in damages plus attorney fees.

Read the complaint.

In This Article: Allen WeisselbergCy VanceDonald TrumpE. Jean CarrollLetitia JamesMatthew CalamariSummer ZervosTrump Organization

Biden’s Authority to Mandate Vaccines Stems From Law Protecting Workers From ‘Grave Dangers’

Shiels Blog intro:

We are at a turning point: two great swirling political nebulae: 1. yes, more government (e.g. Biden) will protect progressive (worker, climate, environment, underserved, women’s autonomy/agency, stimulation of the economy by government Action v. 2. No, less government (Republicans’): free market, less State interference, less concern about government “climate science”, less affirmative action, limits to abortion, rejection of federal gun legislation. This administration, more than those of Obama and Clinton, appears pushed by elements of the Democratic Party to a truly Progressive experiment, perhaps helped by the Covid Plague, to attempt truly ambitious feats not seen since the 1960’s or 1930’s.

White House officials believe the law is a legitimate and legal way to combat the pandemic, though they acknowledge it has never been used to require vaccines.

President Biden’s assertion of far-reaching executive authority this week appeared to be on strong legal ground, experts said.
President Biden’s assertion of far-reaching executive authority this week appeared to be on strong legal ground, experts said.Credit…Al Drago for The New York Times
Michael D. Shear

By Michael D. ShearSept. 10, 2021Updated 1:41 p.m. ET

WASHINGTON — President Biden’s far-reaching assertion of presidential authority to require vaccines for 80 million American workers relies on a first-of-its-kind application of a 51-year-old law that grants the federal government the power to protect employees from “grave dangers” at the workplace.

White House officials believe the emergency authority provided by Congress under the Occupational Safety and Health Act of 1970 is a legitimate and legal way to combat the coronavirus pandemic. But they acknowledge that the law’s emergency provisions, which were employed in previous decades to protect workers from asbestos and other industrial dangers, have never been used to require a vaccine.

The novelty of the effort is at the heart of legal threats from Republican lawmakers, governors, pundits and others, many of whom vowed on Thursday to challenge the president’s use of the workplace rules. Senator Ted Cruz, Republican of Texas, called the Mr. Biden’s actions “utterly lawless.” Gov. Brian Kemp, Republican of Georgia, said the move “is blatantly unlawful, and Georgia will not stand for it.”

In a fund-raising email sent on Friday, Gov. Ron DeSantis of Florida, a Republican who has issued antimask orders, wrote, “Joe Biden has declared war on constitutional government, the rule of law, and the jobs and livelihoods of millions of Americans.”

But top aides to the president do not appear to be shaken by what they say was an expected response from those quarters. At a middle school in Washington on Friday morning, Mr. Biden responded to threats of lawsuits from his adversaries.

“Have at it,” he said.

And experts said the administration appeared to be on strong legal ground because it was relying on existing authority granted to the Occupational Safety and Health Administration by the legislative branch and supported by decades of judicial rulings.

“The OSHA Act gives employees a right to a safe and healthy workplace,” said Robert I. Field, a law professor at Drexel University. “Having a vaccinated work force is an essential component of having a safe and healthy workplace. Being exposed to a potentially deadly virus is neither safe nor healthy. So OSHA would have that authority.”

Mr. Biden’s call to use that authority was a sharp shift in tone and approach. Flinging aside the caution that has characterized his administration’s earlier tack toward vaccine mandates, the president said he would use the OSHA rules to require vaccines for as many as 80 million workers in private companies across the country, along with health care workers, teachers, federal employees, government contractors and more. Those who still refused would be required to submit to at least weekly testing to prove they were not infected.

For months, the president tried gentle persuasion. Anything more, the White House worried, would backfire in a polarized country where tens of millions of people viewed the Covid-19 vaccine as a political Rorschach test.

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But having declared himself out of patience with the unvaccinated, Mr. Biden is now testing the limits of government’s authority to compel personal health care decisions in the interests of confronting a pandemic.

“This is not about freedom, or personal choice,” he said Thursday. “It’s about protecting yourself and those around you.”

The argument may provoke exactly the kind of blowback Mr. Biden’s team worried about.

“Federal government mandates, of dubious legality, will further alienate the skeptical, undermine our institutions, and punish ordinary business owners and their employees,” Senator Patrick J. Toomey, a Pennsylvania Republican, said Friday.

But in a statement, White House officials said the president was “committed to pulling every lever possible” in the fight against the pandemic. The statement said, “The reason that the Department of Labor is able to take this critical step to protect Americans from Covid-19 is that Congress passed a law that requires the department to take action when it finds grave danger to workers.”

“This action is both clearly legal and needed to help save lives and stop the spread of Covid-19,” it said.

White House officials said that OSHA, an agency in the Labor Department, would draft an “emergency temporary standard” over the next several weeks that requires companies to take certain actions.

To impose an emergency standard, the law requires the administration to show that “workers face a hazard in the workplace that poses a grave danger to their health or safety.” They must also prove that the method being used to mitigate those dangers would be effective in keeping workers safe.

In the case of the Covid-19 vaccine, the administration will argue that the death and illness caused by the Delta variant of the coronavirus poses a “grave danger” to workers across the country, and that the vaccine is an extremely effective way of preventing severe illness, hospitalization and death.

Those arguments will likely be included as part of a preamble to the regulatory language that officials at OSHA and the Labor Department are drafting, according to a White House official, who spoke on the condition of anonymity to discuss regulations that are still under development.

Once the regulations are in place, OSHA will enforce them using the usual tools provided to the agency: They will collect reports of violations and will send inspectors out to businesses. And for those businesses that refuse to enact the rules, the agency can impose $13,600 fines for minor violations and $136,000 for major ones.

Kathryn Bakich, a senior vice president at Segal, an employee benefits consulting company, noted that “this is the first vaccine mandate ever applicable to private employers.” But she added that many employers were already “moving toward mandatory vaccination policies at great speed.”

Wendy K. Mariner, a professor emeritus of health law, ethics and human rights at the Boston University School of Public Health, said that the administration’s logic made legal sense.

“Employers have a duty of care to maintain a safe workplace under the Occupational Safety and Health Act,” she said. Given the transmissibility of the virus, she said “it is quite sensible to require vaccination (or testing/masking for those with contraindications to the vaccine; and accommodations for those with disabilities under the A.D.A.) to protect all employees, as well as customers, clients, and patients.”

In his remarks on Thursday, Mr. Biden said it would take weeks, if not longer, for many of his proposals to take full effect — a delay that has real-life consequences as the Delta variant of the virus fills hospitals with severely ill patients who had refused to be vaccinated. The president did not say why he waited until early September to take steps that many health care experts were calling for in July.

But one thing was clear: He is done with coddling, urging, persuading, pleading and even begging people to get vaccinated. Those without the shot are endangering everyone else, he said, preventing the country from putting the pandemic behind them once and for all.

“We cannot allow these actions to stand in the way of protecting the large majority of Americans who’ve done their part, and want to get back to life as normal,” he said.