By the Hon. James E. Baker, Director, Syracuse University Institute for Security Policy and Law
(Just Security | March 20, 2020) The novel coronavirus bell curve is coming. We are not quite sure when or what form it will take. But it is coming, and we have rapidly diminishing time to influence its shape. One way we can do so, health experts state, is with more data about who has COVID-19 and who does not. That takes tests. More tests than, apparently, we have. Another way we can influence its shape is through social distancing. That takes widespread discipline and a commitment to our larger communities and not just ourselves. But where we cannot or should not distance, in health facilities and in supermarkets, it may require more surgical masks, gowns, gloves, eye protection, nasopharyngeal swabs, and wipes. More than we have. And, when the curve comes, we know from Italy, China, and South Korea that we will need hospital beds and ventilators–again, more than we have.
We know these things now. Why doesn’t the federal government act? It has the legal authority to do so: The Defense Production Act (DPA). On March 18, President Trump signed an Executive Order invoking the DPA to delegate authority found in Section 101 to the Secretary of Health and Human Services. However, various public statements by the president and vice president cast doubt on whether the DPA will be operationalized at this time or held in abeyance until some unspecified future date after the crisis has worsened. It is time to clear up the confusion, stop talking about the DPA, and start putting it in action.
DPA Background
In moments of crisis, time is sometimes lost because policymakers are unsure of the facts. Not here. We essentially know now what we will need. Time is also sometimes lost because there is genuine policy debate about the best course of action. Not here. We know now what we need to produce and where to send it. And, time is sometimes lost because of uncertainty about the government’s legal authority to act. Again—not here. The DPA provides broad authority for the government to take the necessary actions.
One hopes that the government’s lawyers have considered most, if not all, potential scenarios on a contingency basis. But sometimes new facts beget new and genuine questions of law that in a democracy ought to be resolved before action is taken. Sometimes, too, policymakers hide behind the law to explain inaction. Lacking the will to act, they blame the law and the lawyers for limiting or eliminating their options. But not here. There remain, and will remain, genuine questions involving the police power, public health, and the constitutional role of federalism in allocating responsibility between state, local, and federal authorities. However, there is no doubt the federal government has the authority to direct the industrial strength of the United States to produce more tests, more masks, more ventilators, and more hospital beds and do so now. The answer is the DPA.
The DPA is a Cold War era statute (1950) that derives in turn from World War II era statutes intended to harness the industrial capacity of the United States for war. The statute was drafted with steel and tanks in mind. However, the statute has been reauthorized over fifty times since 1950 and amended to include within its reach not just the traditional defense industrial base, but also the nation’s critical infrastructures, like public health and critical technologies …