Pentagon Looks to Meet Medical Demand with Defense Production Act

April 2, 2020

---

COVID-19 is an unprecedented emergency that requires a bold response. The saying “desperate times require desperate measures” is somewhat inaccurate: while this pandemic brings us into desperation, our response does not need to be desperate if we are proactive.

As coronavirus (COVID-19) cases increase in the United States, President Donald Trump heeded the call of legislators, governors, and hospitals to invoke the Defense Production Act of 1950. The DPA was originally established during the Korean War and gives the Executive broad abilities to purchase and require production for services necessary for national defense. Congress has reauthorized DPA more than fifty times, most recently in the 2019 NDAA last year, and expanded “national defense” after the September 11 attacks to include national emergencies that threaten public health.[1] The DPA is essential for urgent, legally-sanctioned action on coronavirus because it can rapidly scale up production on testing kits, protective wear for hospital workers, and ventilators in hospitals.

Trump has said that some companies are voluntarily scaling up production; 3M, for instance, will more swiftly ship face masks to key areas such as Seattle, which has seen many coronavirus cases. But DPA will be necessary as the stated goodwill of companies will not guarantee follow-through, unlike a legal mandate. Title I of DPA will allow federal agencies to claim “priority access” to items needed for rapid response to coronavirus: kits, ventilators, and protective wear. FEMA used Title I priority to more easily access tents and food during its 2017 response to Hurricane Maria in Puerto Rico.[2] The Government already has a DPA Committee to implement these authorities on coronavirus, were the President to invoke them.

While the DPA is being legally invoked now, its provisions have “lead times,” according to former NSC legal adviser Jamie Baker.[3] There are gaps between initiation and completion that will require swift follow-up from Trump, the DPA Committee, and potentially even Congress. Under Title III, the President has to find a “domestic industrial base shortfall” for a particular item, and prove that industries cannot produce in a timely manner on their own. The DPA Committee has thirty days to comment as to whether the purchases will exceed $50 million, the threshold that triggers the need for Congress to authorize these purchases.[4] The expense demanded by coronavirus will surely exceed $50 million and require Congress to rise to the challenge.

The authorities granted by the Defense Production Act have a seventy-year historical legacy, and the time is ripe to act upon that legacy in defense of the nation.

[1] Congressional Research Service, “The Defense Production Act of 1950: History, Authorities, and Considerations for Congress,” Updated March 2, 2020, https://fas.org/sgp/crs/natsec/R43767.pdf; Charlie Savage, “How the Defense Production Act Could Yield More Masks, Ventilators and Tests,” The New York Times, March 20, 2020, https://www.nytimes.com/2020/03/20/us/politics/defense-production-act-virus.html

[2] Congressional Research Service, “The Defense Production Act.”

[3] Charlie Savage, “How the Defense Production Act Could Yield More Masks, Ventilators and Tests,” The New York Times, March 20, 2020, https://www.nytimes.com/2020/03/20/us/politics/defense-production-act-virus.html

[4] Congressional Research Service, “The Defense Production Act.”