Update, 4:10 p.m.: President Trump confirmed on Friday afternoon that he had invoked the power of the Defense Production Act to coerce General Motors to “accept, perform, and prioritize Federal contracts for ventilators.” The statement said that HHS Secretary Azar has been directed to use “any and all authority” under the DPA to ensure ventilator supply needs are met.
After many days of discussion and questions during the public briefings, the president moves forward on Defense Production Act. pic.twitter.com/YHOboXm02B
— Kelly O'Donnell (@KellyO) March 27, 2020
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One thing that people tend to prefer in times of great uncertainty is clarity. President Donald Trump just used his Twitter account to make an official statement ordering the invocation of the Defense Production Act (DPA) for the purpose of compelling emergency mass production of ventilators–or did he?
A plain reading of the tweets and the context suggests that he did, but it’s hard to be sure. Let’s walk through–tweet by tweet–what the president said on Friday while ripping General Motors (GM):
As usual with “this” General Motors, things just never seem to work out. They said they were going to give us 40,000 much needed Ventilators, “very quickly”. Now they are saying it will only be 6000, in late April, and they want top dollar. Always a mess with Mary B. Invoke “P”.
Trump said previously that he didn’t need to use the full power of the DPA because businesses have stepped up voluntarily. As Law&Crime has noted time and again, the DPA’s broad authority can coerce the private sector in the production of emergency materials for the purposes of America’s national defense and national security, including in cases of natural or man-caused disasters.
In the tweet above, Trump is saying GM has failed to meet the production levels needed while also charging “top dollar” for ventilators. He called out “Mary B.” (GM CEO Mary Barra) and ended the missive with “Invoke ‘P.'”
The next tweet:
General Motors MUST immediately open their stupidly abandoned Lordstown plant in Ohio, or some other plant, and START MAKING VENTILATORS, NOW!!!!!! FORD, GET GOING ON VENTILATORS, FAST!!!!!! @GeneralMotors @Ford
Is that an order? Trump did say GM and Ford “MUST immediately” make ventilators “NOW” (GM sold the “stupidly abandoned” plant in November).
The third tweet explained what “Invoke ‘P'” meant:
Invoke “P” means Defense Production Act!
Again, is that an order (and for whom) or a declaration?
Eight weeks ago, @SecAzar declared a “public health emergency” to allow the exercise of additional federal authority to combat #COVID19.
Nine days ago, you signed an Executive Order to allow invocation of the DPA—which you still haven’t done.
What the heck are you waiting for? https://t.co/HfhUZXBMBP
— Steve Vladeck (@steve_vladeck) March 27, 2020
University of Texas Law Prof. Stephen Vladeck previously noted that Trump’s DPA executive order ceded authority to Health and Human Services Secretary Alex Azar.
“Presumably, *he* (Azar) could act (if he wanted to),” Vladeck tweeted.
Many have criticized @realDonaldTrump for not following through on his invocation of the Defense Production Act.
But under the governing Executive Order, the relevant authority has been delegated to @SecAzar. Presumably, *he* could act (if he wanted to):https://t.co/BXrEbPoE9m pic.twitter.com/4QcbPi39iN
— Steve Vladeck (@steve_vladeck) March 24, 2020
Is Trump’s tweet really a message for Azar or… ? Is it a threat to GM and Ford to get it together or else the DPA will compel them?
People want to know.
Does this qualify as a legal invocation of the Defense Production Act? https://t.co/7lJcHsZYvk
— Jake Tapper (@jaketapper) March 27, 2020
Is "Invoke 'P'" a formal declaration of the Defense Production Act? https://t.co/gaA7apSUCp
— Josh Dawsey (@jdawsey1) March 27, 2020
Is this an order via the Defense Production Act? Or just a tweet? https://t.co/bBFk3iNCft
— Steven Dennis (@StevenTDennis) March 27, 2020
Courts have recognized that President Trump tweets are official statements.
President Trump also said ventilators were purchased and “thousand of … Ventilators” were found in New York storage.
We have just purchased many Ventilators from some wonderful companies. Names and numbers will be announced later today!
— Donald J. Trump (@realDonaldTrump) March 27, 2020
Thousand of Federal Government (delivered) Ventilators found in New York storage. N.Y. must distribute NOW!
— Donald J. Trump (@realDonaldTrump) March 27, 2020
[Image via Doug Mills-Pool/Getty Images]
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