The president's assertions of legal authority often have little basis in reality. But our responses matter, because we can transform his imaginations into facts on the ground.

By Daniel Hemel

May 4, 2020 at 5:45PM

A car with a sign calling for a safe and healthy workplace drives past Smithfield Foods, Inc. in Sioux Falls, S.D., during a protest on April 9 on behalf of employees after many workers complained of unsafe working conditions due to the COVID-19 outbreak. (The Minnesota Star Tribune)

Newspapers and television networks across the country reported last week that President Donald Trump had signed an executive order compelling meat-processing plants to remain open even as their employees test positive for the coronavirus in droves. Meat and poultry executives quickly praised the president's action, while unions condemned Trump's order for prioritizing industry interests above workers' lives. Predictably, Senate Republicans applauded the president, while Sen. Bernie Sanders, I-Vt., and congressional Democrats derided Trump's move. The nonprofit Environmental Working Group warned that Trump's order could be a "death sentence" for workers.

Lost amid all of this was the fact that Trump's order, which appeared on the White House website late Tuesday, does not actually order meat-processing plants to reopen. Indeed, it does not order the meat-processing plants to do anything. And although the president had told reporters Tuesday that his order would "solve any liability problems" that plants might face with respect to lawsuits arising from COVID-19 exposures, the order does not do that either. Far from a death warrant, it is a paper-thin proclamation with limited legal effect.

There is an important lesson to be learned from the episode, even though — or rather, precisely because — the reactions on both sides blew Trump's order out of proportion. The president's assertions of legal authority, like his off-the-cuff medical advice, often have little basis in reality. But our responses to the president's statements do matter, because we can transform his imaginations into facts on the ground. If employees return to work at meat-processing plants because of the president's order, then for all practical purposes, he does have the power that he asserts, even though no statute gives him that power and the order drafted by his lawyers doesn't compel anyone in a factory to do anything. Presidential power is, to a large extent, what all the rest of us make of it. Right now, we are making it out to be far too much.

Here's what Tuesday's order actually does. First, it declares that meat and poultry in the food supply chain fall under Section 101(b) of the Defense Production Act, a 1950 statute that has been invoked for hundreds of thousands of military purchases before. That, to be sure, is a dubious declaration: Section 101(b) applies only to "scarce and critical material essential to the national defense." While Trump reportedly relies on steak, cheeseburgers and meatloaf for his own sustenance, our service members, law enforcement officers and front-line health workers could defend the nation just fine on dairy, eggs and protein-rich legumes.

But even so, the declaration does not — on its own — compel any action.

The second thing the executive order does is to delegate the president's Defense Production Act authority over the food supply chain to Agriculture Secretary Sonny Perdue. The order instructs Perdue, a former veterinarian and Georgia governor, to take all appropriate actions "to ensure America's meat and poultry processors continue operations" consistent with guidance from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration. In other words, all the powers that previously belonged to Trump under the Defense Production Act with respect to the food supply chain now belong to Perdue.

What exactly are those powers? First, the Defense Production Act allows the president — and now, by virtue of Tuesday's order, Perdue — to require meat and poultry plants to prioritize certain contracts over others. For example, if a beef plant cannot satisfy all of its demand, then Perdue can mandate that the plant provide beef to the Army before it ships its product to a supermarket chain.

Second, and somewhat more vaguely, the Defense Production Act authorizes the president (and now Perdue) to "allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense." Could Perdue invoke that authority to order a plant to reopen? Possibly, though he hasn't done so yet. Such an order would not shield the plant from liability for potential COVID-19 exposures, however, and it would not require workers to show up to the plant. Moreover, a plant upset with an order from Perdue potentially could challenge it in federal court, where the agriculture secretary's action — like other agency actions — would be reviewed for reasonableness.

All this, though, is somewhat premature, given that Perdue has not yet issued any order to any meat or poultry producer or processor. Notwithstanding headlines like CNN's "Trump orders meat processing plants to stay open," neither Trump nor his agriculture secretary has issued any such mandate. If a plant is closed, it can remain closed. If managers want to close an additional plant, they can. Nothing has changed any of that as a legal matter.

The danger, though, is that workers and managers in the meat and poultry industry will respond not to the law but to the way that the law is portrayed. It is quite a lot to ask any nonlawyer to parse the text of Trump's executive order and the statutes on which the order is based. And certainly when union leaders, progressive politicians and respected media outlets affirm the president's delusions, we cannot blame ordinary folks for assuming that shuttered plants now must spring back into action.

As important as this issue is for thousands of workers in the meat and poultry industry, it may be only a small preview of what is soon to come. Trump has intermittently asserted that he has authority to order businesses to reopen even while states and municipalities maintain bans on nonessential services. And he may do so again. The assertion is widely understood by legal scholars to be baseless. Ultimately, though, what matters is not how legal scholars react, but how the public does. If millions of Americans go back to work because Trump told them to and they thought they had to obey, then his baseless claims become true.

In the end, what protects us from an imperial presidency is not just the legal process, which can take weeks or months to kick into gear, but the process by which presidential pronouncements are translated into popular understandings. And what is so worrisome about the meat plant episode is that the translation went badly awry. If the result of the telephone game is to give the president powers he doesn't actually have, then it will not be Trump alone who bears the blame.

Daniel Hemel is an assistant professor of law at the University of Chicago and a visiting professor at Stanford University law school. He wrote this article for the Washington Post.