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I don't mean to cause trouble, but I think these headlines are getting it wrong.

Nothing in the text of the Order claims any power to force plants to "stay open," and nothing in the statutory sections on which the Order purports to rely delegates such authority.

Here's why:
The Order's big move is to designate meat and poultry as "strategic materials" under the Defense Production Act. Fair enough. But all it *authorizes* is for the Secretary of Agriculture to use his authority under DPA § 101.

But DPA § 101 says nothing about forced openings...
Instead, DPA § 101 (50 U.S.C. § 4511) is just about allocation of federal resources and priority for federal contracts. There's no authority under this provision to *force* private businesses to do anything other than prioritize federal contracts.

law.cornell.edu/uscode/text/50…
To be sure, the Order also delegates to the Secretary the authority to implement the more coercive provisions in Chapter III of the DPA (50 U.S.C. §§ 4554–60), but the Order does not *direct* the Secretary to do so—and none of *those* provisions include compelled openings either.
All of this is to say that, once again, we're buying into how the White House is *describing* the President's actions rather than carefully parsing the actions *themselves.* Putting aside the sensational and alarming headlines, this EO actually seems fairly uncontroversial.

/end
(P.S. Here's a link to the Executive Order. The operative provision is section 2.)

whitehouse.gov/presidential-a…
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Steve Vladeck
@steve_vladeck
Article II of the Constitution gives the President the power to adjourn Congress if—and only if—the House and Senate cannot agree on a date for ending the current session.

But they have agreed—January 3, 2021.

There’s a reason why this power has *never* been exercised before.
In the old days, congressional sessions did not run all the way to the end of each Congress—so it was possible that the House and Senate would disagree about a specific adjournment date.

Today, though, the second session runs right to the end of the Congress—noon on January 3.
The Senate could always try to change that. But a motion to adjourn would be subject to cloture—meaning it would need at least 7 D votes.

The majority could get *rid* of cloture by a simple majority, but I have to think this would be a bridge too far for at least 4 R senators.
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Steve Vladeck
@steve_vladeck
Here’s the regulation governing the federal government’s domestic quarantine authority—42 C.F.R. § 70.6:

law.cornell.edu/cfr/text/42/70…

It doesn’t obviously authorize a state-wide federal quarantine—note the focus on quarantining an “individual” who is infected.

But ...

(cont’d)
If quarantining an entire state is the only way the government can prevent those within that state from spreading the disease to those outside, it’s a non-frivolous interpretation of § 70.6(a)(2).

Note, though, how that reading depends upon the absence of less restrictive means.
If we were better prepared for this—or were in a better position to conduct comprehensive surveillance testing—there’d be even less of an argument for this kind of measure. The irony of the slow federal response is how it could help justify *more* restrictive measures now.

/end
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Steve Vladeck
@steve_vladeck
1. We're probably going to start hearing about the "Insurrection Act" in the coming days—and the specter of domestic use of the military for law enforcement.

Here's a #thread on what it is, what it isn't, and why we shouldn't necessarily be alarmed that it's being discussed:
2. Its misleading name aside, the Insurrection Act is actually a series of statutes dating all the way back to 1792 through which Congress has given the President the power to "call out" the militia—and, as of 1807, the regular army—during three kinds of domestic emergencies.
3. Two of those emergencies are quintessentially military—invasions and insurrections. But the third is more ambiguous: to "execute the laws of the union." The idea was to be a backstop for circumstances in which civilian authorities were overwhelmed or otherwise unavailable.
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