By Kate Hubbs
Introduction
As the coronavirus pandemic worsens in the U.S., hospitals feel the strain as they face medical supply shortages.[1] The Society of Critical Care Medicine projects that of hospitalized patients with coronavirus, about 40% —about 1.9 million patients—will be admitted to intensive care units.[2] Additionally, 50% of the intensive care unit admissions, or 960,000 patients, will require ventilatory support. [3] However, U.S. hospitals only possesses about 62,000 mechanical ventilators, and even with the additional 12,700 ventilators for emergency use in the national strategic stockpile, this supply is not enough.[4] Some hospitals, such as in California and New York City, are borrowing ventilators or attempting to rig them so that they can serve more than one person at a time.[5] Still, a shortage is expected to worsen because patients often need the ventilators for weeks.[6] Furthermore, hospitals are also coping with a shortage of face masks, which protect medical providers from infected patients.[7] In response to the mask shortage, the Centers for Disease Control and Prevention issued guidance allowing doctors to use homemade masks such as scarfs when caring for patients with the virus.[8]
With the shortages of ventilators and masks escalating, governors and medical professionals have called for the federal government to increase production of ventilators and other equipment.[9] The American Hospital Association and other national health industry groups wrote to Vice President Mike Pence last week urging the federal government to “expeditiously move to spur massive, increased production” of medical supplies.[10] In response, President Trump announced on Wednesday, March 18, that he would invoke the Defense Production Act[11] in order to address the shortage of supplies.[12] Hours after his announcement, Trump signed an executive order formalizing the decision.[13] “To ensure that our healthcare system is able to surge capacity and capability to respond to the spread of COVID-19”[14] the order reads, “it is critical that all health and medical resources needed to respond to the spread of COVID-19 are properly distributed to the Nation’s healthcare system and others that need them most at this time.”[15]
The Defense Production Act
Enacted during the Korean War-era, the Defense Production Act grants the President powers to ensure products and services that are essential to national defense are timely supplied to military and civilian agencies.[16] Today, Congress has expanded what constitutes “national defense,” to include natural disasters, terrorist attacks, and other national emergencies.[17] Since the COVID-19 pandemic is a national emergency[18], this Act can be used to respond to the need for medical supplies to address the COVID-19 pandemic.[19] As such, the U.S. government may contract with industries to prioritize the production of goods in scarce supply.[20]
The Defense Production Act also authorizes the President to lend money directly to targeted industries and shield businesses from anti-trust actions.[21] These provisions incentivize industries to “agree to what you want to do –it’s a sword of Damocles authority, if you will,” says Jeffrey Bialos, who was in charge of the Pentagon’s use of the Defense Production Act during the Clinton Administration.[22] Bialos goes on to explain that the Defense Production Act is “a set of tools the administration can use to negotiate with companies in an industry. So if you’re short of some product––ventilators, face masks, whatever–– you call in the company, survey their capabilities quickly, understand what they can and can’t do, and then you start dealing.”[23]
The Implementation of the Defense Production Act
While President Trump signed the executive order March 18, it was not clear how the administration intended to use the DPA authority.[24] Trump explained that he intended to ramp up production for ventilators, “millions” of masks, and “certain pieces of equipment,” but he did not specify the quantity of supplies the White House hoped could be produced and at first only stated that he was invoking the law “just in case we need it.” [25] Despite urges from Senate Democrats and the American Medical Association, as of Friday there was not a clear plan set in place by the Trump Administration.
While the President’s exact use of the Defense Production Act is still unclear, many manufacturers are racing to boost production of medical ventilators.[26] Companies like Medtronic, Philips, and Getinge, some of the largest suppliers of ventilators, are working to meet increased global demand, including in the U.S., but there still may not be enough if cases surge.[27] Other companies such as General Motors Co. and Ford Motor Co. are exploring the possibility of making ventilators as well.[28] On Friday, General Motors announced that it would work in coordination with a ventilator company to help increase production.[29] Yet, even while companies are voluntarily producing more supplies on their own, this still may not be coming quickly enough to keep up with the increased demand –especially if there is a surge in COVID-19 cases.[30]
Therefore, there is an urgent need for the Trump Administration to implement the Defense Production Act to speed the production of more ventilators.[31] Domestic industries need direction, funds, and federal contracts in order to respond to shortage of medical supplies. The Defense Production Act, if implemented by President Trump, could help alleviate the strain that many hospitals are already beginning to feel as a result of low supplies. Even with an infusion of supplies from the strategic stockpile, there will not be enough medical supplies to respond to the projected COVID-19 outbreak.[32]
Conclusion
While many are
making efforts to flatten the curve of the COVID-19 pandemic by washing their
hands and social distancing, the threat of a surge of cases still looms over
the U.S.[33] Hospitals in highly affected areas are
already beginning to feel the strain, and even with the increased production
occurring at the moment, officials argue that it will not be enough.[34] The Defense Production Act could help
mobilize domestic industries to prioritize this shortage and aid doctors and
nurses in combatting COVID-19.
[1] David Welna, Trump Invokes a Cold War Relic, The Defense Production Act, For Coronavirus Shortages, Nat’l Pub. Radio (Mar. 18, 2020) https://www.npr.org/2020/03/18/818069722/trump-invokes-a-cold-war-relic-the-defense-production-act-for-coronavirus-shorta.
[2] Andrew Restuccia & Stephanie Armour, Trump Says He Will Use Defense-Act Powers to Boost Coronavirus Medical Supplies, Wall Street J. (Mar. 20, 2020) https://www.wsj.com/articles/trump-says-he-will-use-defense-act-powers-to-boost-coronavirus-medical-supplies-11584722448.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Welna, supra note 1.
[10] Peter Loftus, Ventilator Makers Ramp Up Production Amid Coronavirus Crunch, Wall Street J. (Mar. 19, 2020).
[11] 50 U.S.C. § 4501 (2012).
[12] Loftus, supra note 10.
[13] Id.
[14] Proclamation No. 56, 85 Fed. Reg. 16227 (Mar. 18, 2020).
[15] Id.
[16] 50 U.S.C. §§ 4502, 4511 (2012); Andrew Restuccia & Stephanie Armour, Trump Says He Will Use Defense-Act Powers to Boost Coronavirus Medical Supplies, Wall Street J. (Mar. 20, 2020) https://www.wsj.com/articles/trump-says-he-will-use-defense-act-powers-to-boost-coronavirus-medical-supplies-11584722448.
[17] § 4502; Alex Wong, What the Defense Production Act Is and How It Can Help the Government Fight COVID-19, Heritage Foundation (Mar. 19, 2020) https://www.heritage.org/defense/commentary/what-the-defense-production-act-and-how-can-it-can-help-the-government-fight
[18] Proclamation No. 9994 85 Fed. Reg. 15337 (Mar. 13, 2020) (declaring COVID-19 a national emergency).
[19] § 4502; Wong, supra note 17.
[20] § 4511; Welna, supra note 1.
[21] 50 U.S.C. § 4532 (2012); Welna, supra note 1.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Loftus, supra note 10.
[27] Id.
[28] Id.
[29] Lauren Fox, Pressure mounts for Trump to actually use Defense Production Act, CNN.COM (Mar. 20, 2020) https://www.cnn.com/2020/03/20/politics/defense-production-act-trump/index.html.
[30] Id.
[31] Id.
[32] Welna, supra note 1.
[33] Id.
[34] Loftus, supra note 10.
