Time is of the Essence: Invoking the Defense Production Act

After strong urging from both sides of the political aisle, President Donald Trump invoked the Defense Production Act to better mobilize our nation’s resources to respond to the COVID-19 pandemic. By invoking the Act, President Trump may compel private companies to produce ventilators and personal protective equipment that are severely lacking, particularly in some of the hardest hit states. While this may mean thousands more frontline workers and patients will get supplies they need to survive, many argue that the President’s efforts came too late and one thing we know from this pandemic for sure, time is of the essence.

In 2017 after Hurricane Maria struck Puerto Rico, President Trump used the Defense Production Act to direct the Federal Emergency Management Agency to urge private companies to prioritize contracts for housing units, food and bottled water and the overall restoration of electrical transmission and distribution systems in Puerto Rico. [1] However, a global pandemic, like the ongoing spread of COVID-19, is much different than this textbook use of the Defense Production Act. Today, the underlying need is not housing units, food or bottled water, it is ventilators for COVID-19 patients and protective equipment for the health-care heroes at the front lines of this pandemic.[2]

Even with the well-known concern that the national stockpile was insufficient and that demand was skyrocketing, there was a significant delay in the executive’s invocation of the Act.[3] At one point in New York there were about 7,000 ventilators available, while close to 30,000 were needed.[4] Illinois Governor J.B. Pritzker reported that he had not received any of the 4,000 ventilators requested from the federal government so he moved to scouring the global supply chain.[5] Even Texas Senator Ted Cruz called on the federal government to intervene and allocate resources after concern for  rising infection rates grew. Governors were forced to attempt to outbid other states for supplies already on the market. Senator Cruz remarked that compelling private companies to produce medical equipment could save lives; he cited the projections of 810,000 patients needing ventilators with fewer than 200,000 available.[6]

New York Governor Andrew Cuomo, serving  the nation’s hardest hit community, has stated  that getting equipment should be top priority to ensure Americans who contract this virus are not denied life-saving care.[7] As of April 8th, General Motors announced that it will voluntarily build 30,000 ventilators for the national stockpile with 6,000 to be delivered by the end of May and the rest arriving by August, well after the projected peak of the pandemic.[8] While some would argue this could fill the national stockpile to prevent future shortages, these supplies would have been helpful in early March when the virus began to rapidly spread across the United States.[9]

Despite the unknowns of COVID-19 and the Act, ideally there would have been greater efforts from the executive to maximize private-sector capacity and cooperation. But we aren’t in an ideal situation and even the executive was unclear for a while of the complexities of the Act. With the estimated death toll in the United States at 60,000, one can only wonder how a country with prior knowledge of the virus’ spread and many predictions on a pandemic’s potential impact, could be so unprepared.[10] COVID-19 deaths are projected to peak on April 12th and while many hospitals are still lacking adequate supplies, it is easy to question why the executive didn’t act sooner, especially when it had the authority to do so.[11]

As Justice Jackson made clear in the landmark Supreme Court case Youngstown Sheet and Tube Co. v. Sawyer, the President’s powers are at their highest where Congress has expressly or impliedly granted power to the executive.[12] Title I of the Defense Production Act authorizes the President to take actions that allow the federal government to prioritize and allocate services and materials from private companies by mandating that certain contracts override competing contracts and by directing the allocation of materials and facilities.[13] Despite plenty of authority to act and pleas from governors across the country, President Trump was hesitant to compel private companies citing concerns about socialism and nationalizing businesses. In a recent task force briefing, he commended private companies who stepped up voluntarily to meet production demands.

We may never know why the executive waited so long to act but with antibody tests on the way and some areas showing positive signs from social distancing, there is still hope that more lives can be saved, but as we know, time is of the essence.


 

[1] Richard Campbell, Cong. Research Serv., R45263, Puerto Rico — Status of Electric Power Recovery (2018).

[2] Rebecca Hersher & Martin Kaste, Ventilator Shortages Loom As States Ponder Rules for Rationing, Health Shots (Apr. 3, 2020, 5:00 AM), https://www.npr.org/sections/health-shots/2020/04/03/826082727/ventilator-shortages-loom-as-states-ponder-rules-for-rationing.

[3] U.S. Public Health Service Commissioned Corps, Optimizing Ventilator Use during the COVID-19 Pandemic 1 (2020).

[4] Salvador Rizzo, What to Know About the Defense Production Act, Wash. Post (Mar. 25, 2020, 3:00 AM), https://www.washingtonpost.com/politics/2020/03/25/is-trump-using-defense-production-act/.

[5] Governor JB Pritzker (@GovPritzker), Twitter (Mar. 23, 2020, 6:55 PM), https://twitter.com/GovPritzker/status/1242223584627568640.

[6]  Salvador Rizzo, What to Know About the Defense Production Act, Wash. Post (Mar. 25, 2020, 3:00 AM), https://www.washingtonpost.com/politics/2020/03/25/is-trump-using-defense-production-act/.

[7] See id.

[8] Camila Domonoske, GM Will Build 30,000 Ventilators for U.S. Government, NPR: Coronavirus Live Updates, (Apr. 8, 2020, 10:54 AM), https://www.npr.org/sections/coronavirus-live-updates/2020/04/08/829657257/gm-will-build-30-000-ventilators-for-u-s-government.

[9] Derrick Bryson Taylor, A Timeline of the Coronavirus Outbreak, N.Y. Times (Apr. 7, 2020), https://www.nytimes.com/article/coronavirus-timeline.html.

[10] Bill Chappell, Fauci Says U.S. Coronavirus Deaths May Be ‘More Like 60,000’: Antibody Tests On Way, NPR: Coronavirus Crisis, (Apr. 9, 2020, 11:12 AM), https://www.npr.org/2020/04/09/830664814/fauci-says-u-s-coronavirus-deaths-may-be-more-like-60-000-antibody-tests-on-way?utm_campaign=politics&utm_medium=social&utm_source=twitter.com&utm_term=nprnews.

[11] See id.

[12] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 570 (1952).

[13] 50 U.S.C. § 4511(a); 42 U.S.C. 5195 et seq.

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