The novel coronavirus bell curve is coming. We are not quite sure when or what form it will take. But it is coming, and we have rapidly diminishing time to influence its shape. One way we can do so, health experts state, is with more data about who has COVID-19 and who does not. That takes tests. More tests than, apparently, we have. Another way we can influence its shape is through social distancing. That takes widespread discipline and a commitment to our larger communities and not just ourselves. But where we cannot or should not distance, in health facilities and in supermarkets, it may require more surgical masks, gowns, gloves, eye protection, nasopharyngeal swabs, and wipes. More than we have. And, when the curve comes, we know from Italy, China, and South Korea that we will need hospital beds and ventilators–again, more than we have. We know these things now. Why doesn’t the federal government act? It has the legal authority to do so: The Defense Production Act (DPA). On March 18, President Trump signed an Executive Order invoking the DPA to delegate authority found in Section 101 to the Secretary of Health and Human Services. However, various public statements by the president and vice president cast doubt on whether the DPA will be operationalized at this time or held in abeyance until some unspecified future date after the crisis has worsened. It is time to clear up the confusion, stop talking about the DPA, and start putting it in action.
In moments of crisis, time is sometimes lost because policymakers are unsure of the facts. Not here. We essentially know now what we will need. Time is also sometimes lost because there is genuine policy debate about the best course of action. Not here. We know now what we need to produce and where to send it. And, time is sometimes lost because of uncertainty about the government’s legal authority to act. Again—not here. The DPA provides broad authority for the government to take the necessary actions.
One hopes that the government’s lawyers have considered most, if not all, potential scenarios on a contingency basis. But sometimes new facts beget new and genuine questions of law that in a democracy ought to be resolved before action is taken. Sometimes, too, policymakers hide behind the law to explain inaction. Lacking the will to act, they blame the law and the lawyers for limiting or eliminating their options. But not here. There remain, and will remain, genuine questions involving the police power, public health, and the constitutional role of federalism in allocating responsibility between state, local, and federal authorities. However, there is no doubt the federal government has the authority to direct the industrial strength of the United States to produce more tests, more masks, more ventilators, and more hospital beds and do so now. The answer is the DPA.
The DPA is a Cold War era statute (1950) that derives in turn from World War II era statutes intended to harness the industrial capacity of the United States for war. The statute was drafted with steel and tanks in mind. However, the statute has been reauthorized over fifty times since 1950 and amended to include within its reach not just the traditional defense industrial base, but also the nation’s critical infrastructures, like public health and critical technologies. The Act includes authority to prioritize existing contracts, allocate resources, incentivize the manufacture of materials and products, and survey industry to determine which entities are producing or can produce needed materials, services, and goods. The survey authority, in particular, would be significant in the event key items are largely or exclusively produced overseas and the government needed to identify U.S. companies capable of producing the same goods. (Aside: This authority might also be useful in a technological “arms race” involving emerging technologies, but that is an issue for another day.) What’s more, the DPA comes with an existing bureaucracy to enable its work — the Defense Production Acquisition System and Committee.
The March 18 Executive Order and Next Steps
The text of the March 18 Executive Order delegates authority to the Secretary of Health and Human Services, but does not actually require that any action be taken. In other words, the Executive Order brings out a potential toolbox, but gives no direction that it be used. Indeed, many of the authorities found in the DPA were previously delegated to other cabinet secretaries by President Barack Obama. Combined with President Donald Trump’s remark at the press conference that he was invoking the DPA “just in case we need it,” and his subsequent tweet that the Executive Order was issued “should we need to invoke it in a worst case scenario in the future . . . . Hopefully there will be no need,” it appears that the administration intends DPA authorities to continue to lie dormant.
Why the discomfort with operationalizing this crucial national security tool, in the face of a swelling crisis? I have theories, but no answers. The DPA is not part of the ordinary national security law lexicon, or for that matter the public health lexicon. The DPA is the domain of defense contract specialists. Perhaps too, lawyers and policymakers are uncomfortable with the law’s reach or its potential reach. The statute is written in places with such extraordinary Cold War breadth that in earlier times the DPA was referred to as a “commandeering” authority. And, when President George H.W. Bush signed the DPA’s reauthorization into law in 1992 he cautioned that “in peacetime” at least one of its provisions (Section 705 providing for industry assessments) “would intrude inappropriately in the lives of Americans who own and work in the Nation’s businesses.” It is this provision that would be most relevant in the event key supplies are manufactured overseas and the government needs to identify new U.S. sources of supply.
I also suspect the government is hesitant, or has been hesitant, to use the DPA out of a fear of litigation. There is a genuine question as to whether the law can be used to compel a company to accept a new contract for a product or service it does not ordinarily provide, or only to prioritize existing contracts. Were the government to use the law to the full extent of its potential, there might well be legal and political ramifications. Use it and lose it, the lawyers might say. But the purpose of extraordinary authorities is extraordinary circumstances including emergencies. Here we have an actual and undeniable emergency and an authority to respond. What’s more, there is an essential safety valve on the law’s use – it is subject to periodic reauthorization, much like parts of the PATRIOT Act. There will be time to debate its use, in this and other likely circumstances, just not now. In short, with the DPA, the President would be acting at the zenith of his Youngstown presidential powers in accord with the landmark Supreme Court decision. He would be acting consistent with Congress’s power to pass the DPA and delegate authority to the President plus his own constitutional authority to address the current national public health and economic emergency by providing for additional medical supplies and capacities.
When the lessons are learned about what went right and what went wrong in how the government responded to the coronavirus pandemic, experts will debate the facts, the policies, and the speed with which different dimensions of the crisis were discerned and addressed. What they will not be able to credibly debate is whether the federal government had the legal authority to act to produce more tests, masks, ventilators, and even hospital beds. The administration can and should move forward with the DPA’s authority. There’s no time to waste.