Critics alarmed by Biden’s frequent use of Defense Production Act

President Biden’s use of the Defense Production Act to promote the renewable energy industry, increase vaccine production and resolve a national shortage of baby formula has angered critics who say he has overstepped his authority and is increasingly relying on a power that should be reserved for emergencies.

Republicans and other critics accuse Mr. Biden of using the act for his own political salvation. They say the president’s policies are partly to blame for record-high energy prices and other crises, including the formula shortage.

“He’s using it excessively, he’s using it in a fashion that’s not going to help, and he’s using it to fix crises that he created,” Rep. Chris Stewart, Utah Republican, told The Washington Times.

The law, enacted in 1950 at the start of the Korean War, gives the president “a broad set of authorities to influence domestic industry in the interest of national defense,” according to the Congressional Research Service.

The Biden administration invoked the DPA on June 6 “to accelerate the domestic production of clean energy.”

The move will facilitate the production of solar panels and other energy-saving equipment such as heat pumps and insulation. The administration said these measures are needed to lower costs and reduce the nation’s demand for fossil fuels.

In May, Mr. Biden announced two DPA authorizations to help replenish the supply of infant formula. Much of the product had vanished from store shelves after a major recall and prolonged factory closure caused in part by a slow-acting Food and Drug Administration.  

Weeks earlier, Mr. Biden invoked the DPA to speed up domestic production of electric vehicle batteries, potentially giving companies access to hundreds of millions of dollars to mine for the needed minerals.

The president cited the need to ensure “a robust, resilient, sustainable and environmentally responsible domestic industrial base” for the nation’s clean energy economy.

Sen. Patrick J. Toomey, a Pennsylvania Republican who is not seeking reelection, said the president was wasting taxpayer money to advance his climate change agenda.

“If the administration keeps misusing the DPA for nondefense purposes, Congress must curtail it,” Toomey said this month.

Mr. Biden began using the DPA two months into his presidency. He invoked the act to bolster supplies to produce Pfizer’s coronavirus vaccine and to increase the inventory of at-home COVID-19 tests and personal protective equipment, such as gloves and masks.

Some Republicans at the time argued that President Trump and Congress already had funded and put much of the infrastructure into place to produce vaccines and PPE.

The president is using the law routinely and far too broadly, critics say.

“He’s using it much less sparingly than it ought to be used,” Maiya Clark, a senior research associate at the conservative Heritage Foundation’s Center for National Defense, told The Washington Times.

The law authorizes the president to “mobilize domestic industry in service of the national defense, including emergency preparedness,” the Congressional Research Service reported. The law also provides financial incentives to increase the production of critical materials related to national security. 

The Defense Department controls the funds, but Congress can appropriate DPA money to other agencies to fund nondefense projects. Last year, the Democratic-led Congress passed a COVID-19 package allocating $10 billion to the Health and Human Services Department for virus mitigation that Mr. Biden ordered under the DPA.

Other presidents used the DPA infrequently to authorize the Defense Department and other government agencies to prioritize the fulfillment of contracts. Congress recently reauthorized the act until 2025.

President Clinton and his successor George W. Bush invoked the DPA in 2001 to divert energy resources to help California cope with energy blackouts.

Congressional Republicans criticized the move. They said it forced energy suppliers to divert natural gas to California and sell it at below-market rates, or for no payment at all in some instances.

“The Defense Production Act is the most powerful and potentially dangerous American law, in my opinion,” Sen. Phil Gramm, a Texas Republican who was chairman of the Banking Committee, said in February 2001.

Mr. Trump resisted invoking the DPA at the start of the COVID-19 outbreak but began using it in March 2020 to speed up the production of ventilators, masks and other COVID-related equipment.

As a presidential candidate, Mr. Biden attacked Mr. Trump for not invoking the DPA sooner.

On Mr. Biden’s first day in office, he issued executive orders authorizing the use of the DPA to combat COVID-19.

President Obama used the DPA in 2012 to provide $230.5 million to bolster U.S. production of biofuel substitutes for diesel and jet fuel.

“Made possible through the Defense Production Act, this funding opportunity enhances national security by supporting the creation and commercial viability of a defense-critical domestic biofuels industry to advance alternatives to petroleum,” Energy Department officials announced at the time.

Ms. Clark and other defense industry specialists said the DPA was not intended to advance energy diversification.

“The idea that we would just be throwing DPA grants at different pet projects, like solar panels or other supposedly clean energy initiatives, is not a responsible use of these dollars,” Ms. Clark said. “If we’re spending the money on these different projects, they are not available to be spent on key defense items that could use the Defense Production Act.”

Mr. Biden’s use of the DPA to import baby formula from overseas generally won praise, even from Republicans, but Mr. Stewart said it should never have been necessary.

He and other Republicans said the Biden administration was too slow to address the baby formula shortage after the FDA shuttered the Abbott Nutrition plant in Sturgis, Michigan, over safety violations. The plant produces much of the nation’s supply of Similac, the most popular formula, and specialty formulas for infants with critical feeding needs.

The FDA kept the plant closed for months while the Justice Department worked out a reopening plan with the company. The administration did little during that time to address the growing shortage.

On May 18, Mr. Biden invoked the DPA to delegate the health and human services secretary to ensure an adequate supply of infant formula. The order has been used to import formulas from Germany, Australia and the United Kingdom.

“Other presidents haven’t used the Defense Production Act much, but that’s because other presidents haven’t created the crises that this president has,” Mr. Stewart said. “He’s been forced to deal with more things.”

Deputy Secretary of Defense Kathleen Hicks justified Mr. Biden’s use of the DPA for solar panels. She said in a statement that the move would reduce dependence on fossil fuels, which are more difficult to access during a conflict.

She said it also would help the Defense Department “transition toward clean energy technologies that can help strengthen military capacity while creating good jobs for American workers.”

The DPA authorization will waive the tariffs for two years on solar panels imported from four Southeast Asian countries.

The president acted in response to intense pressure from the solar industry, which warned the administration that clean energy projects were stalled because supplies needed to build the panels had dried up.

They blamed an ongoing Commerce Department investigation into whether China was skirting U.S. tariffs by sending parts to Vietnam, Thailand, Cambodia and Malaysia, which produce 80% of all imported U.S. solar panels.

“We applaud President Biden’s thoughtful approach to addressing the current crisis of the paralyzed solar supply chain,” said Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association.

“Today’s actions protect existing solar jobs, will lead to increased employment in the solar industry and foster a robust solar manufacturing base here at home,” she said.

Kevin Purdy, an author at Carbon Switch, which produces research and guides on reducing energy consumption, said the Trump administration sounded the alarm about the nation’s reliance on supplies from foreign countries to maintain its energy grid.

“Biden’s [DPA] order can be seen as a continuation of that trend,” Mr. Purdy told The Washington Times, “demanding that the U.S. move faster in producing its own grid components so as not to be entirely reliant on foreign entities.” 

Others are not convinced.

DPA funds were not meant to produce green energy equipment and jobs, but rather for critical defense products such as Stinger and Javelin missiles to help Ukraine defend itself against the ongoing Russian invasion, Ms. Clark said.

“Solar panels do not help address any pressing national security threats,” Ms. Clark said.