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Despite What Trump Says, His Administration Is Legally Required to Act as an ‘Ordering Clerk’ During Pandemic

President Donald Trump on Friday evening again repeated the legally inaccurate claim that his administration is not supposed to be an “ordering clerk” for medical supplies for the American people during a pandemic such as COVID-19. (He used the term “shipping clerk” on March 19th to describe what he believed to not be part of his administration’s legal job description.) The president made the most recent remarks amid testy questioning from the assembled members of the White House press pool concerning the so-called “strategic national stockpile” of medical products, which is required under federal law to be administered by several secretaries within his administration.

Here is part of the exchange as per the official White House transcript, with emphasis added by Law&Crime:

Q:    When we have the federal stockpile — I mean, isn’t that designed to be able to distribute to the states who need it?

THE PRESIDENT:  Sure. But it’s also needed for the federal government. We have a federal stockpile and they have state stockpiles. And, frankly, they were — many of the states were totally unprepared for this. So we had to go into the federal stockpile. But we’re not an ordering clerk. They have to have for themselves.

Trump went on to say that some states were faring better than others and that his administration has “been helping states.” When pressed further, Trump said (again, with emphasis added):

But we have a stockpile. It’s a federal stockpile. We can use that for states, or we can use it for ourselves.  We do use it for the federal government. We have a very big federal government.

As we have reported several times over the last several weeks, federal law requires a so-called “strategic national stockpile” of medical gear. It requires the Secretary of Health and Human Services (HHS) to:

. . . maintain a stockpile or stockpiles of drugs, vaccines and other biological products, medical devices, and other supplies in such numbers, types, and amounts as are determined . . . to be appropriate and practicable, taking into account other available sources, to provide for and optimize the emergency health security of the United States, including the emergency health security of children and other vulnerable populations, in the event of a bioterrorist attack or other public health emergency.

To accomplish that, the law requires the HHS secretary to work “in consultation with Federal, State, and local officials.” It gives the HHS secretary or the Homeland Security secretary the power to “deploy” the stockpile pursuant to those mandatory consultations. To accomplish deployment, the law says the HHS secretary must “devise plans for effective and timely supply-chain management of the stockpile, in consultation with . . . heads of other appropriate Federal agencies; State, local, Tribal, and territorial agencies; and the public and private health care infrastructure.”

Let’s sum that all up: the law explicitly requires the Trump Administration to engage in “supply-chain management” to “maintain a stockpile” of “medical devices . . . appropriate . . . to provide for . . the emergency health security of the United States.” “Supply chain management” is pretty much the same thing as being a “shipping clerk” and an “ordering clerk,” even though Trump says that’s not his administration’s job. The law says it is his job, and he took a Constitutionally-required oath to “faithfully execute” the law. The law which requires the stockpile of emergency medical gear was put into place after the 9/11 terrorist attacks as part of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.

Because of the novel coronavirus, Congress just set aside $610 million per year for stockpile. That’s up from $533.8 million in previous years. There is evidence it has not been working perfectly.

Judge for yourself whether faithful execution of the law is evident from more of Friday’s combative exchange between Trump and White House reporters. The bitter exchange started with a question about an issue Law&Crime and others noticed on Friday morning: the Trump Administration changed the strategic stockpile website to make it sound like the states, not the federal government, are supposed to bear the primary burden of securing emergency medical equipment and ensuring citizens have access to it. The stockpile law does allow the HHS secretary to “tak[e] into account other available sources” of gear. The law does not, however, give the secretary the carte blanche ability to say: well, if other sources are not available, I can just disregard my own duties to ensure the stockpile is functioning as intended.

Here are more of the questions and the answers on the subject:

Q    President Trump, thank you.  Yesterday, Jared Kushner said the notion of the federal stockpile was, it’s supposed to be “our” stockpile.  It’s not supposed to be state stockpiles that they then use.  What did he mean by “our”?  And —

THE PRESIDENT:  Well, why don’t you ask him?

Q    And even the fact that taxpayers from every state pays for it —

THE PRESIDENT:  What’s that?  A “gotcha”?  “I gotcha.”  You used the word “our.”

Q    No, it’s not a “gotcha.”  What did he mean by it?

THE PRESIDENT:  “Our” — you know, what “our” means?  United States of America.  That’s what it means.  It means —

Q   So it means the states?

THE PRESIDENT:  Our.  Our.  It means the United States of America.  And then we take that “our” and we distribute it to the states.

Q    So why did he say it’s not supposed —

THE PRESIDENT:  Not that we have to —

Q    — to be state stockpiles that they then can use?

THE PRESIDENT:  Because we need it for the government and we need it for the federal government.

Q    To give to the states.

THE PRESIDENT:  But when the states are in trouble — no, to also keep —

Q    Then who are you giving to if it’s not to the states?

THE PRESIDENT:  To keep — to keep for our country, because the federal government needs it too, not just the states.  But out of that, we oftentimes choose — as an example, we have almost 10,000 ventilators and we are ready to rock with those ventilators.  We’re going to bring them to various areas of the country that need them.  But when he says “our,” he’s talking about our country.  He’s talking —

Q    But he makes the distinction.

THE PRESIDENT:  Excuse me.

Q    And, sir —

THE PRESIDENT:  He’s talking about the federal government.  I mean, it’s such a basic, simple question, and you try and make it sound so bad.

Q    It’s not bad.  I’m just trying to —

THE PRESIDENT:  You ought to be — you ought to be ashamed of yourself.

Q    — understand.  No — by the way, Secretary Azar —

THE PRESIDENT:  You know what?  You ought to be ashamed.   It’s such a simple question.  He said “our.”  And “our” means for the country and “our” means for the states —

Q    But then he said it’s not supposed to be state stockpiles.

THE PRESIDENT:  — because the states are part of the country.  Don’t make it sound bad.  Don’t make it sound bad.

Go ahead, Steve.  Go ahead, back here.

Q    But, Mr. President, the HHS even changed the language on the website.

THE PRESIDENT:  You just asked your question.  You just asked your question in a very nasty tone.

Q    I don’t think it was nasty.

THE PRESIDENT:  Let’s go.

Q    I think you didn’t give me an answer.

THE PRESIDENT:  Please.

Q    Mr. President —

THE PRESIDENT:  I gave you a perfect answer. You know it. Go ahead.

Despite some complaints from some state governors, Trump said on Saturday that “the relationships have been really very good” with the states. He said he spoke with New York Gov. Andrew Cuomo (D) and was “working very hard to get additional things to New York as quickly as possible.”

“There will be a lot of death, unfortunately,” Trump said Saturday, but insisted he was still saving lives and wanted as few lives lost as possible. He said trust in the media was at an all-time low and implored reporters to stop spreading “fake news.”

“During a national emergency it’s just essential that the federal decisionmakers cut through the fog of confusion in order to follow the facts and the science,” he said.

[Photo by Win McNamee/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of The Daily Debrief on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.