A 70-year old law could help in the battle against the coronavirus outbreak.
“We’re at war…and we’re fighting an invisible enemy,” President Donald J. Trump announced in a press briefing late last month. Yet as the so-called war against COVID-19 continues, President Trump has invoked his authority under the Defense Production Act (DPA) only a few times.
As rates of COVID-19 infections skyrocket and medical equipment and personal protective equipment run out, members of Congress argue that President Trump should use the DPA more aggressively to force increased production of needed medical equipment. Even the Federal Emergency Management Agency reportedly said at one point that the DPA could be used to procure more testing kits.
Nevertheless, President Trump and members of his Administration have shown reluctance to force companies to produce needed materials under the DPA, arguing that companies are stepping up on their own. So far, President Trump has invoked his DPA authority only a handful of times to address the COVID-19 crisis.
For example, President Trump issued a memorandum authorizing the U.S. Department of Health and Human Services (HHS) Secretary Alex Azar to contract with General Motors under the DPA to produce ventilators. President Trump has also issued similar memoranda aimed at increasing production of needed supplies—one memorandum authorizing Azar to contract with 3M to produce N-95 respirators and another authorizing him to contract with six other companies to produce ventilators.
The DPA gives the President the authority to direct manufacturers to produce materials that are necessary for national defense. When the DPA was originally enacted in 1950, it was mainly used to increase production of military equipment for the Korean War.
In more recent years, the DPA has been used often, having been interpreted broadly to protect the national defense through “military and energy production or construction,” “emergency preparedness activities,” and “critical infrastructure protection and restoration.” A recent report showed that the U.S. Department of Defense typically benefits from the invocation of the DPA about 300,000 times a year.
The DPA has three sections—or titles—each outlining a different set of presidential powers. President Trump’s COVID-19 orders have focused on Title I, which outlines “priorities and allocations” powers.
Title I grants the President the power to require individuals, businesses, and corporations to accept contracts with the government to produce scarce resources and materials that are essential to the national defense. The President can then prioritize these contracts, requiring the contractor to complete the government’s contract before any competing work.
Using Title I, the President can also “allocate materials, services, and facilities” in whatever way he determines is required to assist the public defense. The President does not have the power, though, to regulate employment contracts or to set wage or price controls.
Title I also allows the President to control the distribution of materials he deems critical, scarce, and “essential to the national defense.” One way the President can control distribution is by creating rules that prevent civilians from hoarding scarce materials.
The DPA gives these powers to the President, and the President can then delegate them to agency heads.
One of the handful of ways that the President has used the DPA to address the pandemic is by issuing an executive order delegating DPA powers to HHS Secretary Azar to address production and use of medical resources during the COVID-19 emergency. Azar has used this delegated authority so far to make arrangements with General Motors to produce 30,000 ventilators for the national stockpile, with the first delivery of about 6,000 ventilators anticipated to arrive June 1, 2020.
President Trump also issued a separate executive order delegating power to Azar to determine which materials are considered scarce. Azar is also authorized to create rules to restrict hoarding and to investigate and gather information about the distribution of scarce resources around the nation.
Using this authority, Azar in early April issued a notice explaining that scarce materials include N-95 respirators, ventilators, personal protective equipment, disinfecting devices, and sterilization services among other materials. Using the DPA’s authority, the notice prohibits people from owning more of these scarce materials than is needed to satisfy “reasonable demands of business, personal, or home consumption” or from accumulating these materials to resell above market price.
Given the likely persistence of the virus’s threat to public health for months to come, some experts have argued that the President should use the DPA to secure more supplies. Experts have even advocated the designation of a single federal agency to “coordinate the entire industrial response.”
Critics of the Administration’s COVID-19 response also argue that the DPA could be used to aid vaccine production. They question “why the government is not bringing its full arsenal to the fight.” Just as the Defense Department uses the DPA hundreds of thousands of times per year, critics suggest that President Trump should use the DPA aggressively in the so-called war against COVID-19.