President Trump has wisely chosen not to answer calls from senators, governors and media pundits for him to “flatten the curve” by invoking the Defense Production Act (DPA) to commandeer businesses to make ventilators and other medical equipment during this viral crisis.
The health and economic crises facing the country are real, and so is the pressure to exceed the president’s statutory and constitutional authority to address them. Even in the face of high-profile critics, he is right to resist.
The United States has faced crises before and it will surely do so again. The DPA is a significant national defense tool enacted in 1950 to better ensure the country’s military preparedness for war.
When used properly, the act can be an effective legal weapon in the president’s arsenal to keep military supply lines open, strengthen weaknesses in the industrial base, and ensure that essential defense stockpiles remain fully stocked.
It authorizes, among other things, federal contract prioritization, material allocation, loan guarantees and direct federal investments in industries. But it does not supersede the Constitution and the limited powers conferred upon Congress and the president.
Congress has already dangerously expanded the DPA’s original purpose and definition of “national defense” over the years. According to the Congressional Research Service, the DPA now may be used to “enhance and support domestic preparedness, response, and recovery from natural hazards, terrorist attacks and other national emergencies.”
But calls to conscript private companies and industries in the name of virus protection and medical preparedness would push the DPA well past where it was ever meant to go and more important beyond where the Constitution allows. Authorizing emergency purchases and bypassing regulatory contract procedures are far cries from taking over U.S. factories.
And history, as it so often is, should be our guide. Soon after Congress passed the DPA, President Harry Truman tried to prevent a steel workers strike from upending the steel supply at the onset of the Korean War. As the union strikes began and the steel mills closed, Truman — concerned about the effect on our military capability — seized the mills and ordered them to stay open. The steel companies sued and the Supreme Court wasted little time in siding with the mills.
Even with the invocation of DPA and in the middle of military conflict, the court’s famous 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer rebuked Truman’s ill-advised takeover, finding that “there is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress… from which such a power can be fairly implied.”
Truman, of course, relented and the mills remained closed for nearly two months even as the Korean War raged.
Those who would tempt Trump to follow Truman’s lead are either willfully ignorant of this well-known legal history — required reading in every constitutional law class in America — or they are trying disingenuously to suggest that Trump is being unresponsive and doing less than he can to confront this crisis. Both are inexcusable.
Trump’s prudent discretion to forgo illegal federal mandates and instead rely on the private sector’ patriotism to produce ventilators, medical masks and treatments has saved him from Truman’s judicial fate. His restraint in the face of mounting pressure deserves praise.
The president understands that even in times of uncharted crisis, his powers and those of the federal government writ-large remain rightly limited by our founders.
He may no more commandeer medical supply companies and pharmaceutical firms to do his bidding than he may deploy the Army or local sheriffs to arrest citizens who fail to keep the recommended “social distance” between themselves and their friends.
But abiding by constitutional precepts and respecting legal limitations are not signs of a do-nothing president.
On the contrary, Trump’s instinctive reliance on the American people, its big and small corporations, and its state and local governments to rise up and meet this challenge signals the president’s genuine understanding of America’s greatness.
Although the powers of the president may be limited, the power, resolve and generosity of the American people are not — and Trump knows it.
