Robbins: Understanding the Defense Production Act
On March 18, the president declared the nation was on a wartime footing.
The enemy? A virus. A coronavirus, to be specific — COVID-19.
As Sun-Tzu, the sixth century B.C.E. Chinese general and military strategist once observed, “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
Ponder that for a moment.
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Before marching on, then, what exactly is a virus?
Know your enemy
If not exactly my professional expertise (although I did spend five years of graduate research and study in the biological sciences before law school), a working layperson’s definition is that a virus is an infective agent that typically consists of a nucleic acid molecule in a protein coat, is too small to be seen by light microscopy, and is able to multiply only within the living cells of a host. A “nucleic acid” in turn is a complex organic substance present in living cells. DNA and RNA — the stuff that carries all living thing’s genetic blueprints — are nucleic acids.
More simply, a virus is an infinitesimally small infectious agent that replicates only inside the living cells of an organism. Not that I suspect that they do much dancing, but, literally, 100 million of them could dance on the head of a pin. Once inside the living cells of their host, they may wreak havoc.
A coronavirus is so named because under electron microscopy, the little bugger looks like it is wearing a spiked crown about its surface. There are four main sub-groupings of coronaviruses, known as alpha, beta, gamma, and delta. Human coronaviruses were first identified in the mid-1960s.
Including, COVID-19, there are seven coronaviruses that are known to infect people. MERS and SARS are part of this be-crowned family. Sometimes coronaviruses that infect animals can evolve and make people sick and become a new human coronavirus. This “zoonotic” transmission was first identified in Wuhan, China, and is believed to be the origin of our present foe.
The battle ahead
The adversary now identified, the question has become, “How best to fight it?”
Essentially, there are three paths to conquering this rival:
- Development of a vaccine and effective drugs to treat the virus
- Ramping up the capacities of hospitals and other care facilities to treat the ill
- “Social distancing” to slow — and in the most hopeful case, halt — the inexorable spread of the infection
A month ago, before it became a way of life, “social distancing” was perhaps how we treated societal pariahs. We “social distanced” from thugs and murderers by throwing them in jail. Now, it’s how we treat our friends.
The Defense Production Act
The Defense Production Act is targeted at the second of the three paths to victory: ramping up capacity.
The president has now invoked the act.
The Defense Production Act was established in 1950 in response to production needs during the Korean War. According to the Federal Emergency Management Agency, the act functions as “the primary source of presidential authorities to expedite and expand the supply of resources from the US industrial base to support military, energy, space and homeland security programs.”
The president’s executive order initially indicated that the president would use the act to obtain “health and medical resources needed to respond to the spread of COVID-19, including personal protective equipment and ventilators.” Equivocating at first, the president stressed that he would only use the powers granted under act “in a worst-case scenario.”
He 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.”
On March 27, he, at last, moved forward in order to compel General Motors to retool to help make up the shortfall of ventilators.
But what, precisely, does the act provide?
When enacted, the act was part of a broad civil defense and war mobilization effort in the context of the Cold War.
It is comprised of three major sections. The first authorizes the president to require businesses to sign contracts or fulfill orders deemed necessary for national defense. It also allows the president to designate materials to be prohibited from hoarding or price-gouging. The second section authorizes the president to establish mechanisms (such as regulations, orders or agencies) to allocate materials, services and facilities to promote national defense. The third section authorizes the president to control the civilian economy so that scarce and/or critical materials necessary to the national defense effort are available for defense needs.
Further, the act authorizes the president to requisition property, force industry to expand production and the supply of basic resources, impose wage and price controls, settle labor disputes, control consumer and real estate credit, establish contractual priorities, and allocate raw materials towards national defense.
In this particular instance, in this war against what has become a ravaging pandemic, placing the nation on a war footing and invoking the act allows the president to order “peacetime” factories to produce “war” material, things like ventilators, surgical gloves, masks and gowns.
For now, keep calm. And keep your distance. This too will ultimately pass.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
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