Daniel Hemel: Trump's Meat-Processing Plants Order is Another Example of Claiming Powers He Doesn't Have

No, Trump didn’t order meat-processing plants to reopen

Newspapers and television networks across the country reported last week that President 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.

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