Noah Feldman: Trump’s coronavirus ‘orders’ are just suggestions

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President Donald Trump’s decision not to renew the federal stay-at-home advisory is the perfect symbol of his approach to the COVID-19 pandemic: Once again, Trump is operating by signal and sign and suggestion, not concrete directives or orders.

It’s not so much that the president is not leading at all. It’s that his leadership operates as a kind of shadow play, not as a practical reality.

The federal advisory was never anything more than a nonbinding suggestion to the states. Declining to renew it is also nothing but a nonbinding hint that perhaps some states should be able to reopen. Neither has any formal consequences. Both amount to atmospherics.

It’s important to remember that the president of the United States does have the power to lead by action, not suggestion.

True, existing federal law most probably didn’t authorize Trump to order a nationwide lockdown. But consider what Trump could have done via regulation. He could have directed every agency in the executive branch to devise and issue COVID-19 regulations binding the industries that those agencies regulate. That would have enabled him to shut down large parts of the economy in order to achieve safety and health results.

Trump could have invoked the emergency powers of the Defense Production Act more quickly and more completely to focus resources on protective equipment and tests. Trump has used the DPA to target a few individual firms (some of which were already producing the necessary equipment). But the Act gives him the power to marshal entire sectors of the economy, to nationalize the distribution of key resources and to designate single a federal agency to coordinate all of this activity. So far, he hasn’t used those powers.

And of course, he could have asked Congress to grant him more extensive powers to fight against the virus. The Democrats would certainly have demanded concessions in return, but it seems likely that they would have had to acquiesce rather than be seen as soft on fighting pandemic.

Trump’s executive order designating the meat and poultry packing industry as critical infrastructure is an interesting case study both of what Trump could have done and of what he has declined to do.

On its face, the order is actually surprisingly minimal. It finds that meat and poultry in the food supply chain count as “scarce and critical material essential to the national defense” under the relevant provision of the DPA. It also finds under the same law that there is no other way to meet national defense requirements than to take the step of invoking the act without creating “appreciable hardship.”

Then the executive order gives the secretary of agriculture power to “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.”

Now it’s not entirely clear to me that it makes sense to define meat and poultry production as national critical infrastructure. It’s true that the DPA isn’t restricted narrowly to national defense in the ordinary sense of the term. It does define critical infrastructure to include assets whose loss would affect “national public health or safety.”

So by defining the meatpacking industry as critical infrastructure, Trump was taking some sort of action — of the kind he could have taken in a wide range of other domains, but has not.

Yet the same time, the executive order doesn’t by its terms order the plants to stay open. That is something the secretary of agriculture could potentially do under the order, to be sure. But it presumably will not be necessary, because the plant owners seem to want to stay open in order to keep making money.

What’s more, the order doesn’t, on its own terms, bar states from making their own policies or judgments about whether to close plants, as some states have done. The order probably enables the secretary of agriculture to countermand state policies if he chooses to do so; but the order itself is functioning more like a signal to the states than like a directive.

One possible real-world effect of the order is to help the meatpacking plants avoid legal liability they might potentially face if employees get sick. Section 707 of the DPA says that no one can be held legally liable for damages resulting from compliance with a government order issued under the DPA.

Without entering too deeply into the subtle legal question of whether the order would, in practice, actually confer liability protection, it’s worth noticing that the order says that any federal directives will have to be consistent with CDC and OSHA guidance. That means the order doesn’t present itself as contradicting the federal guidance already provided to the meatpacking industry. It may well mean that a plant that violated the CDC and OSHA guidance wouldn’t be immune from liability.

The upshot is that, even when issuing an executive order that makes headlines, Trump is in fact continuing to lead by hints and suggestions, not commands.

Believe me, I’m not advocating for this president to become more autocratic. Strong executive action is only a good thing when that strong executive is making good decisions. Trump’s weak executive approach may ultimately be a blessing when considered in the light of the alternatives.

What’s crucial is for us to be aware of what our president is actually doing to fight this crisis — and what he is not.



Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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