MSNBC Attacks Trump For Using The DPA After Criticizing Trump For Not Using The DPA

Authored by Jonathan Turley,

President Donald Trump has used the Defense Production Act to ensure beef, pork, poultry and egg plants keep operating to avoid a food shortage. 

That did not sit well with MSNBC Chris Hayes who objected to Trump using the DPA after blasting Trump for not using the DPA.  For weeks, I have been raising what I view as a widespread misconception of the DPA and its function.  This is an example of how the DPA has become part of a media mantra to suggest that the Administration refused to use the Act when it could have addressed shortfalls.  This spin redirects the primary responsibility for the failure to prepare for a pandemic from governors, who ignored years of warnings of shortfalls and lack of stored material.  There are legitimate questions about mistakes made in this pandemic but the DPA has increasingly been used in a way disconnected from factual and legal foundations.

Hayes objects that the Trump Administration failed to use the DPA to force production of ventilators and other items. However, as I have said previously, there is no reason to use the DPA if the Administration believes that companies are at maximum input.  One legitimate objection that the Administration has made about the coverage is the widespread misrepresentations of the ventilator issue.  Dr. Deborah Birx and others have noted that no one was actually denied a ventilator and that states had a surplus.  We are currently producing an astonishing level of ventilators that far exceeds our expected needs by a sizable degree.

The point is that the DPA moves away obstacles or motivates companies when needed.  If companies are cooperating and meeting maximum projections, there is no reason to use the DPA.  The Administration has used the DPA in other areas to remove or motivate.  Clearly the Administration could have used DPS on everyone and everything to negate these criticisms.  However, it would simply create new levels of bureaucratic control and serve little real purpose if the companies are responding to government demands.  In this hue and cry over the DPA, there is a lack of specifics in how these companies would increase their effort further or what contractual obstacles need to be removed.

The latest DPA is a classic use of the Act.  The country has already faced panic buying on items like toilet paper.  Much of this trend is entirely irrational.  There was no reason why toilet paper should be the focus of panic buying but the result was a real shortage.  The chances of a panic buying on food is far far more serious.  There is already a drop of 25% in the food supply from these industries.  It could drop further.  The result is a serious threat to the nation as a whole in supplying the most basic necessity for life.

What is interesting about this use of the DPA is that it may be most valued due to its impact on liability.  By being forced to stay open, the companies can claim that they were not negligent because they were compelled to operate.  The question will be whether workers can be fired for refusing to work.  They cannot be forced to do so but could face threats over a refusal to work despite the obvious risk to them.

This is a real threat to the nation.  At a time of short food supply, we are seeing tens of thousands of animals slaughtered due to the reduction in processing.  It is not just confined to these meat plants and the virus outbreak among the work force.  We are seeing food destroyed due to interruptions in the supply chain or other market problems.  This is occurring when food banks are overwhelmed.  (This is an area where the government needs to act to pay farmers to allow for donations to food banks).

I remain highly suspicious of the failure of these companies to better protect workers.  These are startling numbers of affected workers and deaths.  The obvious response of the Administration should be to follow up with a greater federal presence in the operation and safety of these plants.  The Administration needs to bring federal resources and expertise to these plants to protect workers.

However, the use of the DPA to protect the food supply is exactly the type of national emergency that the Act was designed to address. 

The MSNBC  attack reflects a curious pattern in the media where it moves effortlessly in adopting diametrically opposed positions. The only common denominator is the target of the coverage.  For months the media decried the Administration for not taking control of the pandemic and state efforts despite some of us noting that this is a primary state responsibility. Then when Trump, wrongly, claimed that he could take control, the media cried foul that this is a violation of states rights.  Likewise, the media objected that the Trump Administration was not using its authority to grab needed PPEs and other materials. However, when the Administration started to grad such material and distribute them to hot spots, the media criticized the Administration for interfering with states from getting such material.  Now the Administration is blamed for using the DPA after being chastised for not using the DPA.  The most remarkable thing about this pattern of flips is the absolute ease with which it has occurred.

None of this is meant to clear the Administration. Many questions remain about early warnings and early actions. That includes the possible use (including DPA orders) on mask and PPE production. However, there has also been some remarkable successes. FEMA and the Army Corps of Engineers have done phenomenal jobs in ramping up production and building needed beds and resources. The speed of industry and government to address new therapeutics and treatments is also amazing.  As I have said before, the need for fair coverage has never been greater.  We should not paint with too broad a brush. Much coverage remains excellent and informative.  However, there is a clear agenda or bias in some of this coverage on issues like the DPA.  This bias can become outright misinformation on legal issues in pandemic from criminal claims to constitutional criticisms.    News coverage should have greater consistency than just the target of criticism.