Biden increasingly relies on DPA, drawing GOP scorn

President Biden is repeatedly turning to the Defense Production Act (DPA), a decades-old law that gives the president broad authority to increase the manufacturing output of critical items in a national emergency.

The DPA has been a prong of the pandemic response since the Trump administration, but Biden has turned to it for other uses. Most recently, Biden invoked it five times to boost domestic production of goods used to make solar panels. 

The move was hailed by environmental groups and climate-minded lawmakers as the kind of bold action needed to address climate change, at a time when Biden’s legislative climate agenda is stalled in Congress. 

At the same time, it triggered some criticism from Republicans, with Sen. Pat Toomey (R-Pa.) accusing Biden of abusing a law that was initially passed in response to the Korean War for defense purposes. The policy, first authorized in 1950, allows the president and executive branch to order private companies to focus on the production of a needed good.

“When you get out of a national security space or something like pandemic response, the more that people are going to say, ‘Is this appropriate?’ ” said Jerry McGinn, executive director of the Center for Government Contracting at George Mason University’s School of Business. 

“It’s not surprising Republicans are going to criticize a Democrat or vice versa. But the authority’s very clear, it’s got to be essential for national defense, and are solar panels essential for national defense? So that’s where we have the debate on this,” he said. 

The White House called invoking the DPA for solar panels an important first step toward the administration’s clean energy goals when questioned about how it won’t impact the increase in electricity rates for the summer.

“The steps we’re taking today are in response to an urgent need of — to grow the domestic clean energy economy and strengthen U.S. energy security. They are part of the president’s multipronged approach to accelerating the transition to a cleaner, a clean energy future made right here in America,” White House press secretary Karine Jean-Pierre told reporters on Monday.

Biden also invoked the law to speed up the production of materials used to make baby formula amid the nationwide shortage, after receiving bipartisan calls from Congress to do so. Earlier this year, Biden used it to boost production of electric vehicle batteries as the administration looks to further boost its clean energy agenda. 

Former President Trump was criticized for not moving quickly enough to invoke the DPA at the start of the COVID-19 pandemic to compel the production of medical equipment. He finally used it in March 2020 to order General Motors to ramp up production of life-saving ventilators despite calls from the business community to not use emergency powers to target the private sector.

Biden has been more aggressive with his use of the law.

On his first day in the White House, Biden signed a sweeping executive order for federal agencies to use the DPA to ramp up supplies of protective equipment, COVID-19 vaccines and tests and other supplies needed in the fight against the pandemic. 

The administration regularly used the law to ramp up at-home rapid tests, which by the White House’s count increased from 24 million last August to more than 300 million in December.

“It’s an incredibly important authority, and the pandemic showed its power in a very positive way. They were able to use that to get all kinds of stuff on contract. It didn’t directly impact the vaccine development, but as far as masks and production, it had a big impact,” McGinn said.

McGinn also said that while the pandemic put the DPA in the spotlight, presidents previously also used it to great effect but less publicity.

Former President Obama in 2012 invoked the DPA to speed up the development of biofuels for military and commercial use, which was criticized by Republicans at the time as a move to boost his own green energy agenda.

The wartime measure was used by former President George W. Bush in 2003 to supply GPS receivers to the British military during the Iraq War, and it was used by Bush and former President Clinton in early 2001 to ensure that emergency supplies of natural gas flowed to California utilities to avoid electrical blackouts.

The president can also delegate authorities of the DPA to agency heads, like in 2017 when the Federal Emergency Management Agency used it for manufactured housing units, food and bottled water, and restoration projects after the hurricanes in Puerto Rico.

McGinn warned that the DPA’s broad use could be inappropriate and result in the law being a subject of partisan bickering.

“The problem, since the pandemic, people recognized, ‘Wow, that DPA is something,’ ” he said. “But the challenge is if we start using it for things where it’s really not appropriate for, then it becomes more political and you can create problems for its use down the road.

“That’s the biggest concern I would have, you don’t want to undermine something that’s very, very effective by using it where it’s not appropriate.”

The DPA was last authorized in 2019 defense policy legislation and will expire in 2025, meaning lawmakers will need to renew it again in the coming years. Toomey suggested Monday that Congress should curtail the law if the Biden administration continues to use it for nondefense actions.

In his action on Monday, Biden directed the Energy Department to use the DPA to boost domestic production of solar panel parts, building insulation, heat pumps, power grid infrastructure and equipment used to make clean energy-generated fuels. 

Jean Su, director of the left-leaning Center for Biological Diversity’s energy justice program, said that the actions would spur investment in and manufacturing of those specific products. 

She said that Biden could also use the DPA to spur growth in the electric transportation sector by targeting electric vehicle charging stations, electric buses and other green modes of transportation.

“The announcement is a game changer. On a macro level, we’re seeing him really flex his muscles on his executive powers, which he has not yet done to date,” Su said. “That’s a huge sea change in terms of his approach for climate.” 

Rachel Frazin and Zack Budryk contributed.