Understanding Biden’s Invocation of the Defense Production Act

On Feb. 5, the Biden administration announced plans to leverage the Defense Production Act (DPA) to bolster vaccine production, boost the availability of at-home and point-of-care virus tests, and increase the supply of critical shortages in personnel protective equipment such as masks, shields and gloves. Alongside the use of the DPA, the Pentagon announced plans to deploy at least 1,000 active-duty military personnel throughout the country to support mass vaccination efforts. 

A little less than a month later, the President vowed on March 3 to make enough vaccine doses available to vaccinate every U.S. adult by the end of May. This expedited vaccination timeline was attributed to an agreement, brokered by the White House, between Johnson & Johnson and Merck to expand Johnson & Johnson’s existing vaccine production capabilities. White House Chief of Staff Ronald Klain suggested that this new vaccine production timeline was at least in part made possible by the DPA. 

These announcements were made possible by two executive orders (13987 and 14001) issued during President Biden’s first week in office. The orders were designed to systematize the federal government’s management and coordination of the coronavirus pandemic recovery efforts—to include reevaluating existing supply levels in the Strategic National Stockpile—and to establish the organizing framework under which the DPA would be used. These steps are in line with Biden’s campaign promise to leverage the authorities under the DPA to support a goal of administering 100 million coronavirus vaccines within the first 100 days of his presidency.

For their part, both Pfizer and Moderna stated on Feb. 23 that they expected to increase vaccine production by the spring. Pfizer Chief Executive Officer Albert Bourla noted that the DPA has “significantly aided” his company’s efforts to secure raw materials and equipment necessary to expand production of the vaccine.

While these initial invocations of the DPA are likely to be only the first among many, the orders provide some insight into how the administration plans to utilize existing authorities to counter the pandemic in the near term. They also signal the White House’s hope to build a longer term capability to handle future health challenges that may emerge.

Before unpacking Biden’s directives, it may be useful to first review the DPA itself and the Trump administration’s invocation of its statutory authorities during the first 11 months of the pandemic. 

Background on the Defense Production Act

The DPA was originally enacted in 1950 during the Korean War. It was inspired by two World War II-era laws (the First War Powers Act of 1941 and Second War Powers Act of 1942) that granted the president emergency powers to, among other things, enter into contracts and to require the prioritized fulfillment of those contracts over all others. The laws also included the power to allocate materials and facilities for their fulfillment. While these original authorities lapsed at the end of World War II, the beginning of the Cold War and the outbreak of the Korean War prompted President Truman to appeal to Congress to reinvigorate executive authorities to protect the country’s national security. 

The original DPA included seven titles, four of which expired at the end of the Korean War in 1953, as detailed by the Congressional Research Service. Three of those titles have been reauthorized more than 50 times since then (most recently in the John S. McCain National Defense Authorization Act of 2019, which authorizes the act until 2025). The authorities that were allowed to lapse related to labor disputes, requisitioning, rationing, wage and price fixing, and credit controls.

Today, the act confers on the president a broad set of powers to mobilize the resources and production of domestic private companies to meet key national security and defense needs. Specifically, it allows the president to reorient the nation’s domestic manufacturing and production capabilities and to require companies to prioritize and fulfill contracts that address those national needs. (Lawfare previously explored these DPA authorities in March 2020, after President Trump’s initial invocation of the act. This article summarizes those authorities below.) 

Title I of the DPA (“Priorities and Allocations”) allows the president to require persons and businesses to prioritize and accept government contracts for materials and services and to allocate the general distribution of materials, services and facilities to promote the national defense. Before doing so, the president has to determine that the materials in question are scarce and essential to the national defense. The White House also has to determine that the national security needs cannot be met in a less intrusive manner. 

Title III of the DPA (“Expansion of Productive Capacity and Supply”) allows the executive to provide financial incentives—such as loans, loan guarantees, direct purchases and purchase commitments—to incentivize domestic manufacturers and to ensure that the federal government has the capacity to produce critical items. The authorities include the ability not only to provide economic incentives but also to procure and install equipment in private industrial facilities to achieve the necessary production goals. This particular authority is part of the regular functioning of the executive branch and its various

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