Bloomberg Law
May 11, 2020, 8:00 AM

INSIGHT: Meat Plant Executive Order Is Not What It Seems

Dennis Aftergut
Dennis Aftergut
Lawyers Defending American Democracy

The country’s meat-processing plants are now the source of most new Covid hotspots. Yet on April 28, President Donald Trump issued an executive order that some media consistently reported as requiring meat plants to stay open. Concerns quickly arose for workers’ health and for governors’ ability to respond should plants be operating unsafely.

But the executive order was not exactly what it seemed.

Neither the Constitution nor any statute gives the president authority to compel owners to operate plants they had closed because Covid-19 was spreading death on their assembly lines. Nonetheless, Trump’s calculation, as usual, was what best served his re-election; here that meant signaling to America that he was the one keeping meat on dinner plates. And like the pitchman he’s always been, if he didn’t have the power to keep plants operating, never mind; he could peddle the idea that he’d done it.

Let’s look at the president’s executive order. It does not actually command that plants stay open. After invoking the Defense Production Act, the order merely delegates to Agriculture Secretary Sonny Perdue the authority to (a) encourage plants to follow federal guidelines, and (b) prioritize federal contracts. Here are the two core actions ordered:

  • “The Secretary of Agriculture shall take all appropriate action … to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.”
  • “[T]he authority of the President … to promote the national defense over performance of any other contracts is delegated to the Secretary of Agriculture with respect to food supply chain resources, including meat and poultry ….”

Spin Machine

But the spin machine was already in motion. A senior administration official had told reporters before the order issued that it “mandates that critical food supply operations stay open.” In coordination, Perdue released a statement saying that the president signed the order “to keep meat and poultry processing facilities open during the COVID-19 national emergency.”

To journalists on deadline, the administration’s spin fixed the story as “Trump orders meat processing plants to stay open.”

Why didn’t he issue such an order? Plain and simple, owners can’t be required to continue life-threatening operations. And if a state were to shutter a plant for failure to comply with minimal health standards, the president’s authority to override that decision would be dubious, at best.

States Have Broad Authority to Protect Public Health

Under longstanding U.S. Supreme Court precedent, states have primary and broad authority when taking action protecting public health. In 1905, amidst a smallpox epidemic, the court upheld Massachusetts’ right to require inoculation, rejecting a citizen’s claim that the order violated his liberty.

And as the Supreme Court wrote in 1926: “In the absence of any action by Congress on the subject-matter, a state, in the exercise of its police power, may establish quarantines against human beings … in spite of the fact that such quarantines necessarily affect interstate commerce.”

Hence, the states’ police power in a pandemic extends to closing businesses whose operation risks expanding an epidemic. It would require a significant showing of jeopardy to the nation’s defense or to homeland security for a court to find that the Defense Production Act superseded such an exercise of a state’s police power. That showing was nowhere to be found in the president’s executive order.

There’s a sad irony here. The administration a) pretends to use the DPA to do something that our system of federalism leaves to the states, while b) declining to do what the DPA allows: nationalizing a chaotic market for personal protective equipment in order to assure inventory for both our front-line workers and our national security stockpile.

State Actions

Given that the administration successfully cast its executive order as keeping meat plants open, and given the pressure to do so, will any state act should it find a plant operating dangerously? Not likely in Iowa; though one plant there reports a 37% infection rate, Gov. Kim Reynolds (R) has threatened meat industry workers—many of whom are African-American, Latino or immigrants—with ineligibility for unemployment benefits if they do not report for work.

By contrast, other governors, such as Minnesota’s Tim Walz (D), seem sympathetic to union appeals for protection: “No executive order is going to get those hogs processed if the people who know how to do it are sick, or do not feel like they can be there.” The question is, what course will he or other governors pursue?

History teaches it takes a public outcry to protect low-income workers performing work vital to most American dinner tables. In 1906, one of America’s original “muckrakers,” Upton Sinclair, published The Jungle, a novel about sub-human working conditions for low income, immigrant workers in Chicago’s meat-packing industry. The book spurred a powerful public reaction that led quickly to Progressive reforms such as the Pure Food and Drug and the Meat Inspection Act. “I aimed at the public’s heart,” Sinclair later quipped, “and by accident I hit it in the stomach.”

Like Sinclair, today’s journalists have shined a light on the tragedy facing today’s meat and poultry industry workers. How will we, the people, respond?

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Dennis Aftergut is of counsel at the Renne Public Law Group in San Francisco. A former federal prosecutor and local government lawyer who has argued in the Supreme Court, he writes on national affairs.

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