Presidents Donald J. Trump and Joe Biden have invoked the Defense Production Act (DPA) in response to the pandemic of a new coronavirus disease, COVID-19. The Cold War–era law gives the president significant emergency authority to control domestic industries. Trump used the law to crack down on hoarding, limit exports of medical goods, and increase production of critical supplies. Biden is aiming to expand its use to speed up vaccination efforts.
What are the origins of the Defense Production Act?
Passed in September 1950 at the start of the Korean War, the DPA was modeled on the War Powers Acts of 1941 and 1942, which gave President Franklin D. Roosevelt sweeping authority [PDF] to control the domestic economy during World War II. The original DPA gave the president a broad set of powers, including the ability to set wages and prices, as well as ration consumer goods, though not all of these powers have been renewed. The law has been continually reauthorized by Congress, most recently in the John S. McCain National Defense Authorization Act of 2019. It is set to expire in 2025.
What does it do?
The current version of the law still gives the executive branch substantial powers. It allows the president, largely through executive order, to direct private companies to prioritize orders from the federal government. The president is also empowered to “allocate materials, services, and facilities” for national defense purposes, and take actions to restrict hoarding of needed supplies. To bolster domestic production, the president may also offer loans or loan guarantees to companies, subject to an appropriation by Congress; make purchases or purchase commitments; and install equipment in government or private factories. Companies can also be authorized to coordinate with each other, which might otherwise violate antitrust laws.
How has it previously been used?
U.S. presidents from Harry S. Truman to Barack Obama have delegated DPA powers to various parts of the government. In a 2012 executive order, Obama assigned DPA authority to sixteen federal departments and agencies.
The Defense Department has routinely used the law since 1950 to prioritize the fulfillment of its contracts, including for the president’s plane, Air Force One, and armored vehicles. The Pentagon estimates that it uses DPA authority to place roughly three hundred thousand orders per year for a variety of military-related equipment. The Federal Emergency Management Agency (FEMA) also uses the law to respond to disasters, bumping its orders for items such as food and bottled water to the front of the line. The DPA was also used to supply natural gas to California during the 2000–2001 energy crisis.
How did Trump use the DPA to respond to the COVID-19 pandemic?
Trump employed a range of DPA powers. After initially hesitating, he ordered General Motors to produce ventilators and 3M to produce N95 respirator masks for the federal government. He issued an executive order to prevent hoarding of essential supplies and directed his administration to increase the domestic production capacity of essential health products. Responding to concerns about the supply of meat following several plant closures, Trump used DPA authority to ensure that meat processing plants remain open by declaring them “critical infrastructure.” Still, some experts criticized the Trump administration for not going far enough in using the law to secure an adequate supply of protective equipment, including masks.
Trump also issued a directive “preventing the harmful export of critically needed” personal protective equipment (PPE). Such export restrictions are controversial, and this particular power had not been used since the Cold War. CFR Senior Fellow Jennifer Hillman has warned that they “work to the detriment of the world’s ability to distribute these scarce medical resources to where they are needed most with the minimal amount of red tape.”
What is Biden planning?
In one of his first official acts as president, Biden signed an executive order directing his administration to identify shortfalls in the supply of materials needed for the pandemic response and use the DPA to address them, if necessary. Biden’s COVID-19 response coordinator, Jeff Zients, said the administration has identified twelve supply gaps, including in masks, gloves, and testing swabs. The order also tasks the administration with ensuring adequate supplies for future pandemics, including by improving supply chains and expanding the Strategic National Stockpile.
Biden is expected to use the law to help achieve his goal of administering one hundred million COVID-19 vaccine doses within his first one hundred days in office. That likely means boosting the supply of equipment such as low-dead-space syringes, which can be used to extract more vaccine doses per vial.
Some lawmakers have called for aggressive use of the law. In a letter to Biden [PDF] ahead of his inauguration, a group of twenty-six Democratic senators urged him to use the DPA to incentivize domestic production of supplies such as gloves, which they said would be a “boon to patriotic American manufacturers,” and leave the United States better prepared for future pandemics. Some Republicans, including Senator Marco Rubio of Florida, have also encouraged greater use of the DPA.