Trump expands DPA, amid mounting pressure
President Donald Trump on Thursday invoked the Defense Production Act to push 3M and six major medical device companies to produce protective masks and ventilators needed for the coronavirus outbreak, bowing to weeks of pressure to expand the federal government’s use of the emergency statute.
“Moments ago, I directed Secretary Azar and acting Secretary Wolf to use any and all available authority under the Defense Protection Act to ensure that domestic manufacturers have the supplies they need to produce ventilators for patients with severe cases of Covid-19,” Trump said at his Thursday press conference.
The medical device DPA order covers General Electric, Hill-Rom Holdings, Medtronic, ResMed, Phillips and Vyaire Medical, authorizing HHS Secretary Alex Azar to “facilitate the supply of materials to the [companies] for the production of ventilators,” according to a White House statement.
Trump said the order will help the companies “overcome obstacles of the supply chain that threaten the rapid supply of ventilators."
A Medtronic spokesperson said the company is still reviewing the medical device order, but its preliminary understanding is that the administration “is working to ensure that ventilator manufacturers, such as Medtronic, have the necessary supplies we need to continue to increase our production of these critical products.”
Additionally, the president said he signed “an element of the [DPA] against 3M.” That order authorizes the head of FEMA to acquire however many N95 face masks from the company he deems necessary for the crisis. And the administration indicated Thursday that more DPA orders could come soon, possibly related to black market activities.
The orders follow Trump’s decision on Friday to invoke the DPA to force General Motors to produce the badly needed ventilators, which assist with breathing for critically ill patients. Critics, including the Senate’s leading Democrat, faulted that action for only targeting one company, when the DPA allows the federal government broad authority to coordinate industrial response across multiple sectors.
Trump’s order expands the DPA’s reach, but did not give any information on implementing the act. In GM’s case, the White House has taken a largely hands-off approach, with trade adviser Peter Navarro, Trump’s appointed DPA leader, relying on voluntary updates from GM to track the company’s progress much of this week before speaking with GM CEO Mary Barra on Thursday.
DPA experts say Trump’s decision to expand the act to more companies gets him closer to using the act’s full power, but still falls short of the DPA’s ultimate authority. In addition to demanding more production, the act could also allow a single federal agency to coordinate the entire industrial response, purchasing all the needed goods and ensure efficient distribution to hospitals.
“The key value the federal government can provide is providing the backstop of purchasing [the goods] so companies have assurances they will be financially compensated,” said Peter Shulman, associate professor at Case Western Reserve University who studies the law’s application throughout history. “Also, the federal government could use its allocation ability under the act so that the states and hospitals that need the goods get them, and we don’t continue to have the problems we’ve had with competition between states, between hospitals, and between states and the fed government. That’s what needs to be rationalized.”
