Congress must think outside the box on addressing PPE and test shortages

Thousands of patients are dying in isolation because health care workers have limited personal protective equipment (PPE) and are forced to ration. Hospitals, grocery store workers, members of the National Guard, nursing homes, and reopening businesses across the country continue to face deadly shortages. For months, there have been endless calls for the president to fully leverage the Defense Production Act (DPA), a move that would put more Americans back to work and produce enough PPE to supply growing demand in the U.S. and globally.

As our nation nears 100,000 COVID-19 fatalities, Congress is preparing to pass another COVID aid bill and some lawmakers are trying to compel the White House to fully leverage the DPA. Normally that approach would be reasonable, when working with a functional administration and a president that demonstrates empathy naturally, without cue cards or prepared notes.

The president has proven, through his actions, that the carnage in hospitals and nursing homes is not motivation enough to leverage an available law that is routinely used by his own administration to purchase goods and prioritize contracts for the military. In fact, the word “routine” is an understatement. The Department of Defense typically uses the law 300,000 times per year, or an average of over 800 times per day.

I’m outraged too. But we should not expect President Trump to slow the death rate, protect health care workers, flatten the curve and stop the spread. We need a plan B.

For months, the White House has been telling states the federal government is not a “shipping clerk” and to procure their own PPE and testing supplies. Meanwhile, the White House recently announced planned “gifts” for nursing homes that will include only 14 days of PPE supplies for a period of over 60 days.

The prolonged high demand for PPE has sparked new business opportunities for many. Prices soar as more people enter the market to help, buy and sell. States, already facing major financial crises, are paying as much as 15 times the normal cost for life-saving supplies. In contrast to Senate Majority Leader Mitch McConnell (R-Ky.) suggesting that states be allowed to file for bankruptcy, governors are showing us what leadership looks like. In Maryland, Gov. Larry Hogan hid tests that he imported from South Korea due to worries that the federal government would take them. Other governors are importing supplies from China. However, lacking special procurement powers, many states are limited in what they can do. The U.S. Constitution is designed for stronger federal action during times like these.

Instead of letting states crash and burn, the federal government should empower and strengthen governors willing to lead with a bipartisan solution.

Congress can act now to grant states new, limited powers to increase production of PPE and testing equipment, create jobs, lower prices for all Americans, and, most important: save lives.

An “Emergency Production Act for States” would allow states to take priority on contracts for necessary supplies produced in-state and increase production right away. Consider the benefits to the struggling economy if factories across the country produced enough PPE to meet global demand.

An Emergency Production Act for States can pass constitutional muster by conditioning its use on a federal disaster declaration or federal waiver with the caveat that states cannot invoke this law if its use directly conflicts with federal procurement. At any point, the federal government could invoke the DPA and take priority over state use of this proposed measure. Even still, production would increase and that is most important.

States would be able to sell to one another directly at fair market rates and avoid paying top dollar to keep residents safe.

Questions about fairness are legitimate as some states have greater production abilities than others. These concerns can be mitigated by the law itself, as the powers will not be as sweeping as the DPA. For preparedness purchasing, a federal waiver will be required and states can be limited to a fixed percentage of production output to avoid any concerns about commandeering an entire supply. Any conflicts during an emergency can be resolved by the federal government invoking the DPA, nullifying any one state’s supremacy.

Congress can address our PPE and test supply shortages by introducing and passing an Emergency Production Act for States. If the president will not increase production, let’s give states a fighting chance.

Ben Smilowitz is founder and executive director of Disaster Accountability Project and, a nonprofit started after Hurricane Katrina.

Tags Coronavirus COVID-19 Defense Production Act Donald Trump Mitch McConnell Personal protective equipment

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