Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Law360 (March 19, 2020, 10:26 PM EDT) -- President Donald Trump has invoked a wartime law that makes the federal government the top priority for receiving medical equipment to combat the coronavirus outbreak, while a top National Guard official expressed concerns Thursday about possible government overreach.
Trump, who has referred to himself during recent press conferences as a "wartime president," signed an order Wednesday invoking the Defense Production Act of 1950, which was created during the Korean War to ramp up private production of medical equipment.
The provision of the DPA that Trump invoked gives the U.S. Department of Health and Human Services the ability to prioritize contracts so federal government orders of "personal protective equipment," ventilators and other medical products are filled before commercial or other orders.
More extreme and largely untested provisions of the law that Trump has not yet invoked authorize the president to use loans and other incentives to boost the production of critical goods and allow the government to take over distribution chains for national defense purposes and if domestic energy supplies are threatened.
Although his order does not address those two provisions, the president wrote in a tweet Wednesday that he only signed the DPA order "to combat the Chinese Virus should we need to invoke [the DPA] in a worst-case scenario in the future."
Jerry McGinn, who ran DPA programs in the Pentagon and is currently executive director of the Center for Government Contracting in the School of Business at George Mason University in Fairfax County, Virginia, said it would be a "significant move" by the president to use DPA to take over medical distribution chains.
"It's hard for me to see that it would be necessary in this situation," McGinn said. "Part of it is that the industry is totally leaning in to help."
McGinn said that provision had only been invoked a few times in the DPA's history and legal experts say it is largely untested.
In one of those instances, President Harry Truman attempted to nationalize steel mills in response to a union strike during the Korean War. But the U.S. Supreme Court concluded in a 6-3 decision in 1952 in Youngstown Sheet & Tube Co. v. Sawyer that the president lacked the authority to seize the mills.
McGinn also noted that the government regularly assesses its defense supply chains. For instance, he said, in November 2018, Trump issued Executive Order 13806, which identified critical defense supply chains and which chains are single-sourced from China, so that the government could aggressively rebuild those chains.
Trump's DPA order came as the U.S. State Department raised its global travel advisory on Thursday to level four, advising citizens to return from abroad and not to travel internationally. The warning is typically reserved for travel to and from war-torn nations.
At the Pentagon Thursday, Air Force Gen. Joseph L. Lengyel, chief of the National Guard Bureau, also announced that 27 states had activated parts of their National Guard to combat the spread of Covid-19.
Across those states, approximately 2,050 members out of its total 450,000 force are currently serving, but that number will likely go up, he said.
"We anticipate that number going up relatively quickly — in fact doubling by this weekend," he said. "And we expect the total number of guardsmen activated will increase rapidly as test kits become available and as the situation unfolds."
According to Lengyel, the National Guard is already engaged in a variety of missions, including conducting medical tests, providing ground transportation and logistics.
Currently, state governors have mobilized the National Guard within their state borders, and the federal government has not stepped in by invoking Title 10 of the U.S. Code to mobilize the National Guard on a federal level, he said.
Lengyel advised against the federal government invoking Title 10, saying that it would not make sense in this situation and could violate the Posse Comitatus Act, an 1878 law that heavily limits the use of military personnel to enforce domestic policy.
As it stands now, he said, state governors can use the National Guard for local law enforcement, but that ability goes away under Title 10 if the guard is federalized, which he called a "World War II scenario."
"I think you can get everything you need from the National Guard more efficiently and more effectively if you leave them in the state status," he said.
Lengyel compared fighting Covid-19 is like preparing for 54 hurricanes that are about to hit each state, U.S. territory and Washington, D.C., and said such historic events demand a historic response.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact firstname.lastname@example.org.