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Tags: dpa | youngstown | constitutional | military

Memo to Gov. Cuomo: 1950 Act Not a License for Takeovers

gov andrew cuomo of new york
New York Governor Andrew Cuomo speaks to the press at the Jacob K. Javits Convention Center in New York, on March 27, 2020. (Bryan R. Smith/AFP via Getty Images)

Horace Cooper By Friday, 27 March 2020 12:53 PM EDT Current | Bio | Archive

President Trump has wisely chosen not to answer calls from senators, governors, and media pundits for him to "flatten the curve" by invoking the Defense Production Act — or DPA — to commandeer businesses to make ventilators and other medical equipment during this viral crisis.

The health and economic crises facing the country are real, and so is the pressure to exceed the president’s statutory and constitutional authority to address them. Even in the face of high profile critics like New York Governor Andrew Cuomo, he is right to resist.

The United States has faced crises before and it will surely do so again.

The DPA is a significant national defense tool enacted in 1950 to better ensure the country’s military preparedness for war. When used properly, the Act can be an effective legal weapon in the president’s arsenal to keep military supply lines open, strengthen weaknesses in the industrial base, and ensure that essential defense stockpiles remain fully stocked.

It authorizes, among other things, federal contract prioritization, material allocation, loan guarantees, and direct federal investments in industries. But it does not supersede the Constitution and the limited powers conferred upon Congress and the President.

Congress has already dangerously expanded the DPA’s original purpose and definition of "national defense" over the years. According to the Congressional Research Service, the DPA now may be used to "enhance and support domestic preparedness, response, and recovery from natural hazards, terrorist attacks, and other national emergencies."

But calls to conscript private companies and industries in the name of virus protection and medical preparedness would push the DPA well past where it was ever meant to go and more importantly beyond where the Constitution allows.

Authorizing emergency purchases and bypassing regulatory contract procedures are far cries from taking over U.S. factories.

And history, as it so often is, should be our guide. Soon after Congress passed the DPA, President Truman tried to prevent a steel workers strike from upending the steel supply at the onset of the Korean War. As the union strikes began and the steel mills closed, Truman concerned about the impact on our defense capability seized the mills and ordered them to stay open. The steel companies sued and the Supreme Court wasted little time in siding with the mills. Even with the invocation of DPA and in the middle of military conflict, the Court’s famous decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), rebuked Truman’s ill-advised takeover, finding that "[t]here is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress . . . from which such a power can be fairly implied."

Truman, of course, relented and the mills remained closed for nearly two months — even as the Korean War raged.

Those on the left who would tempt Mr. Trump to follow Mr. Truman’s lead are either willfully ignorant of this well-known legal history — required reading in every constitutional law class in America — or they are trying disingenuously to suggest that President Trump is being unresponsive and doing less than he can to confront this crisis.

Both are inexcusable.

President Trump’s prudent discretion to forgo illegal federal mandates and instead rely on the private sector’s patriotism to produce ventilators, medical masks, and treatments has saved him from Harry S. Truman’s judicial fate.

His restraint in the face of mounting pressure deserves praise. The President understands that even in times of uncharted crisis, his powers and those of the federal government writ-large remain rightly limited by our founders. He may no more commandeer medical supply companies and pharmaceutical firms to do his bidding than he may deploy the army or local sheriffs to arrest citizens who fail to keep the recommended "social distance" between themselves and their friends.

But abiding by constitutional precepts and respecting legal limitations are not signs of a do-nothing president.

On the contrary, President Trump’s instinctive reliance on the American people, its big and small corporations, and its state and local governments to rise up and meet this challenge signals the president’s genuine understanding of America’s greatness. Although the powers of the president may be limited, the power, resolve, and generosity of the American people are not— and Mr. Trump knows it.

Horace Cooper is a writer and legal commentator. Previously a visiting assistant professor of law at George Mason University School of Law, his research focus was on U.S. intellectual property rights policy, the role of the United States Supreme Court in the American constitutional system, political forecasting, the legislative process, and federal labor law. Mr. Cooper has also served in senior capacities in the George W. Bush Administration including at the Voice of America and in the Department of Labor under then Secretary Elaine Chao, and on Capitol Hill as Counsel to former Majority Leader Richard K. Armey. To read more of his reports — Click Here Now.

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President Trump’s prudent discretion to forgo illegal federal mandates and instead rely on the private sector’s patriotism to produce ventilators, medical masks, and treatments has saved him from Harry Truman’s judicial fate
dpa, youngstown, constitutional, military
Friday, 27 March 2020 12:53 PM
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