President Biden’s Defense Production Act power grab

Acting with bipartisan support, President Biden has invoked a 72-year old law, the Defense Production Act, to increase domestic production of the minerals used to make electric vehicle batteries. Through this action, Biden has set a worrisome precedent that places massive economic power in the executive branch by classifying a civilian nicety as a “national defense” mandate.

While Congress has previously acted to stretch the law by expanding “national defense” to include terrorist attacks and pandemics, President Biden’s action stretches a power beyond what should be its breaking point.

In the abstract, more domestic electric vehicle battery production might be a good thing, but it has almost nothing to do with any commonsense definition of “national defense.” Not only is the United States at peace for the first time since 9/11, but an extensive 2021 report from the National Academies of Science, Engineering and Medicine concluded that widespread use of batteries for warfighting won’t be possible until at least 2035.

And it doesn’t stop there. As it must also transport, clothe, house, entertain and educate its troops, the Department of Defense buys some of justabout everything; if batteries are necessary for a military that won’t use them widely for more than a decade, then what isn’t?

What’s more, the current law also lets the president make loans, guarantees, purchase agreements and more without congressional authorization. In short, letting Biden’s current actions go unreviewed raises the possibility of a future president carrying something close to a national industrial policy (a less intense form of central planning that involves the government blatantly picking winners and losers) on the basis that “bread and meat” or even “pogo sticks” are national defense necessities. And those who find environmental reasons to cheer Biden’s recent actions should consider how they would feel if a future president made exactly the same determination about the “national defense” need for coal.

Now, minerals areimportant. In fact, critical mineral supply chains as a whole are a long-term structural risk to the economy. But emergency actions aren’t the way to address them. Instead, America needs better economic policies that embrace reducing barriers to development and trade with other countries to make the supply chain more resilient, among other things.

And we know that the Defense Production Act isn’t critical for a strong national defense because America fought and won both World Wars without it. Instead, whenever Congresses recognized that the president should have broad power to respond to needs for war materiel in the past, it passed special legislation authorizing the president to organize and plan for the purposes of the current emergency. Similarly, previous non-war-time uses of the Defense Production Act received the same special authorization. For example, President Trump made use of the law during the COVID-19 pandemic to stimulate the production of ventilators. But he could just as easily have sought congressional approval for the same actions as part of the relief bills Congress passed. Now, President Biden is continuing the worrying trend of skewing powers toward the executive branch that should rest with the legislative branch.

In any case, allowing Congress to lead might move critical priorities forward sooner. In the current situation, government red tape at all levels is a major impediment to the production of minerals, and comprehensive regulatory reforms would do more than one-off government cash injections or mandated studies.

For instance, the recent, grueling permitting experience with the country’s first major lithium mine makes it clear that the development of domestic minerals hinges on regulatory modernization, not subsidies or emergency action.

But with the president authorized to act unilaterally, Congress has no incentive to work on the harder issues it will eventually have to confront if it is serious about the increased production the United States will need to lead on technological innovations.

President Biden’s decision to invoke the Defense Production Act to increase the production of a few minerals useful for electric cars is a power grab. Congress shouldn’t allow future presidents to do the same thing.

Eli Lehrer is president of the R Street Institute.