How the Defense Production Act Could Yield More Masks, Ventilators and Tests

WASHINGTON — President Trump issued an executive order this week invoking the Defense Production Act to battle the coronavirus pandemic, but his advisers have resisted making aggressive use of the law to mobilize private industry.

Mr. Trump has given mixed signals about whether his administration has actually used the law at all to spur the production of scarce and necessary items like ventilators; testing kits; and protective masks, gloves, and gowns.

Here is an explanation of the law.

It is a law that permits the federal government to impose some control over private-sector industry to ensure the production of material that is deemed necessary for national defense. It traces back to the Korean War.

Congress enacted it with military necessities like steel and tanks in mind, but lawmakers expanded it after the Sept. 11, 2001, attacks to cover other areas, including public health and safety. It was reauthorized last year until 2025.

Notably, an existing government panel created under the law, the Defense Production Act Committee — made up of officials from various agencies — already has a process and a system in place to implement it.

“If I were advising the president, I would say, ‘Mr. President you have a lot more tools available under the D.P.A. than are being used. Moreover, some of the tools have lead times,’” said Jamie E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University.

He added: “And, if these tools are being used, then the government should be more transparent in their use so that the public and our first responders are aware that help is on the way.”

One part of the law permits the government to alter the order in which companies fulfill their contractual obligations by telling them to prioritize some existing contracts ahead of others. For example, if a company makes surgical masks and other paper products, the government could tell it to put the other items on hold to free up production for masks. The Pentagon routinely uses this authority with defense contractors.

There is an open question about whether the government could use the law to force a company to accept a new contract for a product that it does not already make.

Convincing companies to set up new facilities from scratch may be particularly difficult. Industry executives said it could take months for factories to obtain the necessary equipment to begin production. Much of the equipment used in American factories is now made offshore, and the global shipping industry is in disarray.

The law gives the federal government the power to decide how scarce material of national security importance is distributed. For example, during a war, it could use that power to steer steel to a tank factory over an automobile factory.

Mr. Baker said the federal government must consider making aggressive use of this power to allocate ventilators and masks rolling off production lines, so that they are distributed to where they are needed most rather than risk states fighting for them in bidding wars.

“We do not want states competing with each other for the same mask,” Mr. Baker said. “We want best public health practices to determine where resources should flow and in what order.”

The government could already be incentivizing rapid changes to expand production capacity and supply of necessary products.

Title III of the Defense Production Act consists of a collection of powers the government could use for this purpose, including making guaranteed loans to help companies develop new production capabilities of goods relevant to the crisis. The government can also procure and install equipment in factories, including privately owned ones.

The law lets the government spend $50 million out of a special fund for this purpose before executive branch officials would need to ask Congress for additional authority.

It could be collecting information about factory equipment to figure out which companies have the capacity to change their production lines and make more needed items.

Under Section 705 of the Defense Production Act, the government can gather information to make such assessments, wielding subpoena power and criminal penalties if a company owner balks and says the information is proprietary. The government could use this power to gather information now that would put it in a position to identify which firms would have the capacity to retool if necessary later.

He has issued an executive order delegating the ability to invoke powers under the Defense Production Act to Alex M. Azar II, the secretary of health and human services, to battle the coronavirus pandemic.

No. It is a minor bureaucratic thing to do. In 2016, President Barack Obama had already delegated the ability to invoke the Defense Production Act to several Cabinet secretaries, for example.

This is unclear.

The administration has not announced that Mr. Azar has ordered any particular company to do any particular thing under the Defense Production Act. And Mr. Trump said on Twitter that, “I only signed the Defense Production Act to combat the Chinese Virus should we need to invoke it in a worst case scenario in the future. Hopefully there will be no need, but we are all in this TOGETHER!”

On Friday, Senator Chuck Schumer, Democrat of New York and the minority leader, said he had urged Mr. Trump in a phone call to actually use the Defense Production Act to get going on producing more ventilators and other equipment needed to combat the virus, and that Mr. Trump had yelled to someone in his office to do it now.

Later that day, in a testy news conference, Mr. Trump claimed that he had already used the law to spur production of “millions of masks.” But Mr. Trump has a long history of saying things that have no basis in fact, and no company has disclosed receiving any such order.

Ana Swanson contributed reporting.

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