The Roundtable
Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
 By Hailie Goldsmith Hailie Goldsmith is a freshman in the College of Arts and Sciences at the University of Pennsylvania. As the novel coronavirus sweeps across the world, essential medical resources like N95 respirators, surgical masks, and ventilators are in incredibly high demand—and in dwindling supply—in the United States. With the federal government and state governments scrambling to determine ways to mass-produce the necessary materials to manage the pandemic, some public health and policy experts have pointed to the Defense Production Act (DPA) as a solution to spur the production of masks and ventilators and address the urgent needs of the U.S. population. The concept of the Defense Production Act originally dates back to World War II when the entirety of the United States banded together to contribute to the war effort. Initially, manufacturers were reluctant to ramp up production since the United States still felt the effects of the Great Depression, therefore, Franklin D. Roosevelt enacted the Second War Powers Act, which allowed him to enforce the speedy mass production of wartime supplies. As a result, car manufacturers converted their factories to produce warplanes and lipstick companies transformed their operations to manufacture bomb cases [1]. Though the Second War Powers Act preceded the Defense Production Act, this momentous increase in presidential power set the stage for the DPA. At the onset of the Cold War, particularly when Soviet-backed North Korea invaded South Korea in 1950, the U.S. federal government felt it was necessary to increase the production of wartime products in preparation for a long process of containing the spread of communism [1]. In order to prepare for an enduring battle against communism, President Harry Truman encouraged Congress to pass the Defense Production Act, which enabled the president to set defense production priorities for manufacturers and increase production capacity to meet wartime demands and ensure national security [1].
Throughout presidential administrations, the DPA has been utilized countless times to procure necessary supplies to support military efforts. The invocation of the DPA typically occurs at a time of a threat to American national security, and this unfolding pandemic certainly poses a severe disruption to the safety of this nation. The Defense Production Act has been applied broadly to deal with any situation that posed a threat to the nation including homeland security issues and natural disasters [1]. Given the threat that the coronavirus poses to U.S. national security, the Defense Production Act is needed to maximize the output and distribution of necessary medical supplies [2]. There appears to be widespread consensus that invoking the DPA is a must-needed move given the drastic circumstances of COVID-19. However, the proper implementation of the DPA will require coordination between President Trump, Congress, and private industry in order to set a budget, allocate funding, and prepare the logistics. At the moment, President Trump expects private manufacturing companies to voluntarily take on the burden of increasing production without the assistance of the DPA. Even if manufacturers want to help, many lack the funds and guidance to contribute meaningfully. American manufacturers require direction and leadership from the federal government. The DPA itself does not create change unless the Executive Branch takes it upon itself to strategize and orchestrate meaningful actions. The DPA makes these actions possible, but the mere invocation of it does not accomplish much [2]. Unfortunately, President Trump’s Executive Order on March 13 failed to activate specific provisions within Titles III and VII of the Defense Production Act which would enable the Department of Health and Human Services to “prioritize and allocate certain resources in the civilian market” [2]. Importantly, Title III empowers the president to use financial incentives, such as loans or direct purchases, to augment manufacturing output and assist private industry [2]. Section 107 of Title III of the DPA states that “the President may provide appropriate incentives to develop, maintain, modernize, restore, and expand the productive capacities of domestic sources for critical components, critical technology items, materials, and industrial resources essential for the execution of the national security strategy of the United States” [3]. Furthermore, Title VII allows the president to bring together experts and heads of various industrial divisions in order to encourage cooperation in building an effective strategy for managing the outbreak through the forging of private-public partnerships and partnerships within private industry. However, President Trump’s recent Executive Order does not address or mention either of these essential Titles and his order was essentially devoid of any concrete federal action. The Executive Branch should utilize specific provisions of the DPA that actually enable the federal government to direct medical supplies to wherever they are most needed [2]. The Defense Production Act specifically outlines the responsibilities of a U.S. President: “The President shall take appropriate actions to assure that critical components, critical technology items, essential materials, and industrial resources are available from reliable sources when needed to meet defense requirements during peacetime, graduated mobilization, and national emergency” [3]. As of now, President Trump has not prioritized the “maintenance of reliable sources of supply,” as the Defense Production Act suggests he should. Even though President Trump’s administration has utilized the DPA thousands of times to procure materials for various military actions and preparations, such as for acquiring materials to build drones, President Trump refuses to use it effectively at a time when the nation really needs it because he claims that the action would verge on nationalizing private industry [4]. So far, President Trump has only issued a memorandum under the DPA to target General Motors and require the company to produce ventilators, but the Executive Branch should extend its reach so that private manufacturers’ efforts can be optimized in this dire time [5]. Instead of coordinating smooth and effective collaboration among leaders of private industry on a national scale to speed up the production of masks, ventilators, and testing kits, President Trump has fallen short with his insufficient attempt at invoking the Defense Production Act and now leaves the undertaking up to disjointed and voluntary efforts by private manufacturers. Sources:
Photo credit: The New York Times
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