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Abstract

Rarely do we get the opportunity, distasteful as it may be in this situation, to relive an older Supreme Court case in real time. Today’s situation involving the meatpackers, some of whose employers are taking no precautions to protect against the pandemic virus called COVID-19, is not (yet) in the courts but comes to us in the form of a presidential executive order. These circumstances recall a compelling case from the early twentieth century in which workers similarly faced conditions dangerous to their health and well-being.

In Lochner v. New York, a majority of the Supreme Court, in an opinion by Justice Rufus Peckham, declared New York State days and hours protections for workers unconstitutional after rejecting the evidence the state put forward and the argument that the bakers— who worked for Joseph Lochner and other entrepreneurs in hot basements with flour dust blowing into their eyes and mouths, who had an average life span of forty-two years when other workers had an average life span of fifty years—deserved protection. Whatever conditions businessmen like Lochner wanted to impose to make sure that the bakers at the furnaces made enough bread to sell to a demanding public, New York State in 1905 was prohibited from intervening to restrict the number of hours and days the workers could be in the bake shop. The holding in Lochner made it safe for Lochner still to ask his line bakers after ten hours’ work, “where’s the bread?”

While the Court eventually reversed course and began to allow government regulation of the labor market with 1937’s West Coast Hotel v. Parrish,5 with contemporary workers at the slaughterhouses, simultaneously essential and expendable, we are reliving the Court’s prohibition of state regulation of business designed to help workers by requiring a safe and healthy environment. On Tuesday, April 28, 2020, in Executive Order 13917, President Trump used the Defense Production Act of 1950 (DPA) to order Tyson and other meat producers to open their plants immediately because “the American people need meat.” The Order also prevented workers’ suits against their employers if they got sick from COVID-19 because of the working conditions at the slaughterhouse’s plant. The Executive Order accordingly led to the conclusion that the radical elimination of the slaughterhouses’ liability for unsafe conditions was unmistakably the point: during the week of March 16, 2020, Smithfield Foods chief executive Kenneth Sullivan sent marching orders to Nebraska Governor Pete Ricketts, complaining that Smithfield employees “work in close proximity to each other and are increasingly asking one question: ‘Why are we here?’ This is a direct result of the government continually reiterating the importance of social distancing.” While meat is economically big business and the heads of the slaughterhouses are powerful, meat is not the only source of protein. Meat may be more important politically and economically than nutritionally, as the concerns set forth in the Executive Order indicate.

Furthermore, whereas in previous epidemic emergencies and until the Executive Order, the Occupational Safety and Health Administration (OSHA) health protocols remained in force, this Executive Order transformed those mandatory protective measures to hortatory only, through the power of the DPA. Shockingly, because of the health and lives of slaughterhouse workers at stake, even the factual basis for the issuance of the Executive Order is now questionable. Evidence suggests slaughterhouses’ contractual commitments to China apparently caused the potential or alleged meat supply “crisis” that John Tyson complained about and that Tyson’s “emergency” advertisement in the papers likely was coordinated with the Labor and Agriculture Departments as well as the President in order to inveigle enough employees, sick or well, to keep working or to return to work so the contractually promised meat could be exported to China.

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