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A Project of The Annenberg Public Policy Center

Trump, Biden and the Defense Production Act

Leading Democratic presidential candidate Joe Biden repeatedly has criticized President Donald Trump for failing to make timely use of his powers under the Defense Production Act to compel companies to manufacture medical supplies that are expected to be needed to treat those infected with the novel coronavirus.

Biden claims he was one of the first to call for the need to use the Defense Production Act. The Trump campaign says Biden only began calling for that on the same day — March 18 — that Trump said he was invoking the act. There’s a bit of spin coming from both sides on this.

We couldn’t find evidence that Biden has been calling for use of the law for as long as he suggests, and Trump did not invoke the full force of the act back on March 18.

With the use of the Defense Production Act becoming a frequent point of contention between Trump and his critics, we thought it would be helpful to explain what the act is and how Trump has (and has not) applied it to date.

What Is the Defense Production Act?

First enacted in 1950 in response to the Korean War and last amended in 2018, the Defense Production Act provides the president broad authority to “influence domestic industry in the interest of national defense,” as a Congressional Research Service report put it in 2020.

“The authorities can be used across the federal government to shape the domestic industrial base so that, when called upon, it is capable of providing essential materials and goods needed for the national defense,” the CRS report states.

The law authorizes the president to identify businesses “capable” of producing “scarce and critical material” to “require acceptance and performance” of contracts to meet those needs. The act also allows the president to incentivize U.S. companies to expand production of critical materials with such things as “loans, loan guarantees, direct purchases and purchase commitments, and the authority to procure and install equipment in private industrial facilities,” the CRS report says.

As the New York Times reported, the law has been used hundreds of thousands of times during the Trump administration, “especially by the military to give its contract priority ratings to jump ahead of a vendor’s other clients.” The Times noted that in recent years, the administration has also used the powers contained in the act to restore power grids and to supply emergency food and water in areas devastated by hurricanes in 2017.

On Feb. 28, Health and Human Services Secretary Alex Azar first signaled that the administration might use the Defense Production Act for the coronavirus to expedite contracts for medical supplies, such as face masks and gloves.

“I don’t have any procurements I need it for now, but if I need it, we’ll use it,” Azar said at a White House briefing.

“We’ll use it if we need to, but we, obviously, if we can work cooperatively with any vendor, we’d rather do that,” Azar said in a March 1 interview on “Fox News Sunday.”

On March 13, 57 House Democrats wrote a letter urging the president to “use the powers afforded by the Defense Production Act of 1950 (50 U.S.C. §§4501 et seq.) to begin the mass production of supplies needed to address the ongoing Coronavirus Disease 2019 (COVID-19) pandemic.”

The letter highlighted the likelihood of shortages of N95 respirators and face masks, testing equipment, and medical supplies like ventilators, and warned that “failure to act now” could “endanger American lives.”

“These authorities could be used to direct the domestic production of equipment currently in short supply, like personal protective equipment and ventilators,” the letter states. “This would ensure we have the materials we need at the ready, rather than wait for disruptions in the global supply chain to subside.

“During World War II, our country adapted to the demands of the time to produce mass quantities of bombers, tanks, and many small items needed to save democracy and freedom in the world,” the letter stated. “We know what the demands of this time are, and we must act now to meet these demands. We urge you to invoke the Defense Production Act without delay.”

Trump Invokes the Defense Production Act

Five days later, on March 18, Trump invoked the Defense Production Act “just in case we need it.” But Trump stopped short of implementing the act to force production of certain goods. Later that day, Trump tweeted, “I only signed the Defense Production Act to combat the Chinese Virus should we need to invoke it in a worst case scenario in the future. Hopefully there will be no need.”

Via Twitter, Senate Minority Leader Chuck Schumer hailed the move as “an important step,” but added, “so much more is needed NOW.”

That same day, Biden released a statement on “immediate actions” he believed the Trump administration should take to address the pandemic. It called for Trump to “Prioritize and immediately increase domestic production of any critical medical equipment required to respond to this crisis — such as the production of ventilators and associated training to operate — by invoking the Defense Production Act, delegating authority to HHS and FEMA. This action must be built on forecasted demand, using the best modeling currently available for negative scenarios.”

In the following days, Trump said that he was reluctant to use the Defense Production Act to force corporations to make products, likening such a move to “nationalizing our businesses.”

Trump, March 22: We’re a country not based on nationalizing our business. Call a person over in Venezuela; ask them how did nationalization of their businesses work out. Not too well. The concept of nationalizing our business is not a good concept.

Besides, he said, companies were voluntarily stepping up with offers to produce masks, ventilators and other needed medical supplies and equipment.

Trump, March 26: For the most part, the companies … We say, “We need this,” and they say, “Don’t bother. We’re going to do it.” I mean, we — we’re dealing with Ford, General Motors, 3M. We’re dealing with great companies. They want to do this. They want to do this. They’re doing things that — that frankly, they don’t need somebody to walk over there with a — with a hammer and say, “Do it.” They are getting it done.

We should note that compelling a company to produce supplies is not the same as “nationalizing” the business. Under the act, private businesses would be paid for their production and would remain private companies, not government entities.

What Biden Said and When

In recent days, Biden has criticized Trump for failing to fully use the Defense Production Act, something he says Trump should have done weeks or even months ago. Biden has also cast himself as one of the earliest to call for it.

  • According to a March 22 pool report of a Biden phone call, the Democratic candidate “reiterated his call for the president to invoke the ‘full power of the Defense Production Act’ and noted he called for that a month ago.”
  • In a YouTube speech on March 23, Biden said, “As of late yesterday, we’re told that the president still has not activated the authority under the Defense Production Act, which I and others call for him to invoke immediately and act on, to direct American manufacturers to make essential supplies. Trump keeps saying that he’s a wartime president, well start to act like one. … We need to get in motion. Get in motion today what we should have set in motion weeks ago.
  • “I would have enacted it a long time ago, Jake,” Biden told CNN’s Jake Tapper on March 24. “I think it was three — two, three weeks ago I pointed out that the president should enact this. It should have been enacted months ago.”
  • During an online news conference the following day, Biden said, “I think it’s really important that we understand that this idea of this Defense Production Act, he talks about signing, he doesn’t want to dictate to companies. There’s things we need now, now, not tomorrow, not yesterday, but months ago or a month ago, and the president’s not acting.”
  • And finally, on MSNBC on March 30, Biden said, “I talked about doing the Defense Production Act before anyone came along.”

The Trump campaign said that as far as it could tell, the first time Biden ever called for Trump to use the Defense Production Act was on March 18, the same day Trump invoked it (but did not use it to compel a company to start producing something).

We reached out to the Biden campaign for evidence that Biden had called for use of the Defense Production Act prior to that, but we got no response. We could not find any public comments from Biden prior to the statement he put out on March 18 — which we referenced earlier.

Prior to March 18, we found instances of Biden talking generally, as he did on March 12, about the need to “surge our capacity” at hospitals, and make “sure communities have the hospital beds available, the staff, the medical supplies, the personal protective equipment necessary to treat the patient.”

Biden did not mention the Defense Production Act in the Democratic debate on March 15, where he encouraged viewers to see his full, detailed plan to combat COVID-19 on his campaign website. Nor does that plan, which was initially posted to the campaign website on March 12, mention the Defense Production Act.

Biden’s plan says only that the federal government should “[w]ork with businesses to expand production of personal protective equipment, including masks and gloves, and additional products such as bleach and alcohol-based hand sanitizer. Incentivize greater supplier production of these critically important medically supplies, including committing, if necessary, to large scale volume purchasing and removing all relevant trade barriers to their acquisition.”

“Work[ing] with businesses to expand production of personal protective equipment” was essentially the Trump administration policy at the time.

If his first public call for Trump to use the Defense Production Act was March 18, Biden would have been exaggerating when he said on March 22 that he called for that a month before, or on March 24 when he said he made those calls “two, three weeks ago.”

It also would have been five days after 57 House members wrote to the president urging him to use the act, and two days after his rival for the Democratic presidential nomination, Sen. Bernie Sanders, publicly called on Trump “to use existing emergency authority under the Defense Production Act to dramatically scale up production in the United States of critical supplies such as masks, ventilators, and protective equipment that our health care workers need.”

We will update this story if the Biden campaign gets back to us with earlier examples.

We can say for sure, though, that Biden has repeatedly claimed to have issued a warning about the seriousness of the virus earlier than he actually did.

“All of the way back in January 17, I wrote a piece for U.S. News & World Report saying, ‘We have got a real problem. The president, we have — coronavirus is real. We have to start acting now,'” Biden said in a March 24 interview with CNN’s Jake Tapper.

The op-ed he wrote was actually for USA Today, and it was published on Jan. 27, not Jan. 17. Those 10 days make a big difference. Biden’s op-ed on Jan. 27 was just four days before the Trump administration announced travel restrictions on those who had traveled to China in the previous two weeks. Had Biden published that op-ed on Jan. 17, he would have been well ahead of the curve.

We would chalk up Biden’s date mix-up to a simple misstatement, but he has cited that same incorrect date at least three other times since.

  • “For example, way back in January 17th I argued that this virus was coming. I did a, I think it was US News and World Report, I did a piece on saying it’s coming. We’ve got to prepare,” Biden said in an online news conference on March 25
  • “I wrote an article back in January 17th saying we should be prepared now and laid out the things that I thought we should be doing then,” he said in a CNN town hall on March 27.
  • “You may recall, I was the first one to call for the president, way back in January 17th, to take this seriously,” Biden said on March 30 on MSNBC. “A real serious crisis is coming, an article I wrote.”
Trump Uses Defense Production Act

On March 23, Trump signed a new executive order “to prohibit the hoarding of needed resources,” citing the authority given to him under the Defense Production Act. On March 30, federal authorities invoked that order when they charged a Brooklyn man for hoarding surgical masks, medical gowns and other medical supplies that authorities said he was selling at inflated prices from his home.

Despite his early reluctance to employ the Defense Production Act to compel businesses to make supplies necessary for the COVID-19 response, Trump said in a March 27 press conference that he had invoked the act “to compel General Motors to accept, perform, and prioritize federal contracts for ventilators.”

Trump also tapped Peter Navarro, a White House trade adviser, to act as national Defense Production Act policy coordinator. At the press conference, Navarro explained that the Defense Production Act was employed to compel General Motors to make ventilators only after the federal government “ran into roadblocks” in its negotiations with GM over production.

Navarro, March 27: We need industrial mobilization to make adequate ventilators, particularly in the very short run, to help people of New York, Detroit, New Orleans, Chicago, Denver, Seattle, all around this country, as this virus bears down. And the ventilators really are the most important thing for patients who become most seriously ill. They’re literally the lifeline for people. And I’ve personally been working with FEMA, and I’ve been working with HHS and over 10 ventilator companies, making sure we can get what we need as quickly as possible. And virtually every one of those companies has been cooperative, patriotic, moving in Trump time — which is to say as soon as possible, sir. But we did have a problem with GM and Ventec. On the one hand, we had Ford and GE moving forward on a similar kind of project, patriotically moving as fast as possible. Over the last several days, we ran into roadblocks with GM. We cannot afford to lose a single day, particularly over the next 30 to 60 days. So President Trump invoked the Defense Production Act as a way of enhancing and accelerating this mobilization.

In an interview on CNN on March 31, Biden said Trump’s action was too slow, and too limited.

Biden, March 31: And he’s been very slow to act. For whatever the reason has been. Been very slow to act on a whole range of things. For example, he still hasn’t fully invoked the Defense Production Act. Which I called for a while ago. He finally did with General Motors after a little roundabout in terms of building ventilators. What about the masks? What about those gowns that those nurses and doctors need? They’re made of paper. What about the goggles the need, the face shields, what about the gloves they need? He can do that by the Defense Production Act right now. He could have done it yesterday, a week ago, three weeks ago, five weeks ago. They’re in short supply. And our first responders are literally risking and some losing their lives to try to help the American people.

Biden is entitled to his opinion that the president acted slowly and “still hasn’t fully invoked the Defense Production Act.” But we could find no evidence that Biden called for the president to use the act prior to March 18, despite his repeated claims that he had done so much earlier.