As the coronavirus (COVID-19) pandemic evolves, the United States faces drug and medical supply scarcities due to disrupted supply chains and increased demand. In response, the President may exercise emergency authorities under the Defense Production Act of 1950 (DPA; 50 U.S.C. §§4501 et seq.) to address supply shortages and economic development impacts. During a press conference on March 18, 2020, the President indicated that he would invoke the DPA to address domestic essential goods and materials shortages caused by the pandemic. This Insight considers the various DPA authorities that may be used going forward and explores potential policy considerations for Congress.
For more information on the health and epidemiological aspects of COVID-19, see CRS Report R46219, Overview of U.S. Domestic Response to Coronavirus Disease 2019 (COVID-19) and CRS In Focus IF11421, COVID-19: Global Implications and Responses.
The DPA confers broad presidential authorities to mobilize domestic industry in service of the national defense, defined in statute as various military activities and "homeland security, stockpiling, space, and any directly related activity" (50 U.S.C. §4552) including emergency preparedness activities under the Stafford Act, which has been used for public health emergencies. Many of these authorities are delegated to executive agencies under Executive Order 13603.
Current DPA authorities include, but are not limited to:
For a more in-depth discussion of DPA authorities, see CRS Report R43767, The Defense Production Act of 1950: History, Authorities, and Considerations for Congress.
As the DPA's definition of national defense encompasses homeland security issues, DPA authorities extend to public health emergencies—prior to the COVID-19 pandemic, however, they had not been employed for such purposes. Following the invocation of DPA by the President, DPA authorities could be employed to address concerns over medical supplies shortages due to the COVID-19 pandemic.
As an example of how DPA authorities may be exercised, consider the availability of personal protective equipment (PPE), such as respirator masks, amid the pandemic. Reported PPE shortages may be due to significantly increased consumer demand related to the pandemic itself, and supply chain disruptions resulting from containment measures in China and elsewhere.
Under Title I, the President could prioritize domestic production of PPE to ensure sufficient national stockpiles, and allocate them according to the needs of the emergency. Under Title III, the federal government could use authorized incentives to expand domestic capacity for PPE manufacturing to meet the needs of the emergency. Under Title VII, the President could establish voluntary agreements with private industry—which might normally be subject to anti-trust statutes—to coordinate industry PPE production.
Numerous Members of Congress have engaged the Administration to advocate for the use of DPA to secure an adequate supply of essential supplies and materials, such as PPE, medical supplies and devices (e.g., ventilators), and diagnostic testing supplies.
The President declared a national emergency on March 13, 2020. Following the invocation of DPA by the President on March 18, 2020, in addition to Congress's inherent oversight authority, the DPA statute outlines several specific congressional equities:
The DPA also confers broad waivers to its Title III requirements:
During a period of national emergency declared by Congress or the President; or upon determination by the President, on a nondelegable basis, that action is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability. (50 U.S.C. §4531(d)(1)(B))
Another area of possible congressional interest is DPA funding, which is appropriated annually. The FY2020 appropriation to the DPA fund was $64.4 million; the President's FY2021 budget requested $182 million for the DPA fund (p. 276). DPA appropriations could also be made as part of a supplemental appropriations package, if the DPA fund is exhausted, and/or to provide resources for other DPA authorities.