Is Mobilization a Major Question?

Authors

• Evan J. Ward, Office of the Deputy Assistant Secretary of Defense, Acquisition Integration and Interoperability, Pentagon

Abstract

The combination of the Supreme Court’s new Major Questions doctrine and its decision in Loper Bright v. Raimondo threatens to hobble the Executive Branch’s ability to effect a major mobilization under the Defense Production Act. The Defense Production Act followed the War Powers Acts of WWII to consolidate and update the presidential powers that were so famously marshaled to mobilize the arsenal of democracy. The Department of Defense has long planned to rely on Defense Production Act authority to mobilize should the need arise, but the risk of litigation brought about by new legal developments means that the authorities the Department assumes will be available may not be when the chips are down.

Even before a crisis, restoring U.S. industrial capacity to deter great power conflict may require robust uses of the Defense Production Act in the coming years. U.S. defense contractors, populated to-a-person by patriotic Americans, are nevertheless publicly traded multinational corporations with a fiduciary duty to return value to shareholders. These companies may very rationally see compulsory actions as a threat to profitability and should be expected to take legal action in the courts to resist if there is a reasonable legal argument to be made. The recent developments in the Supreme Court provide just such an argument, and regardless of how courts might ultimately rule in specific cases, the risk of litigation alone is enough to warrant mitigating action. An industrial mobilization delayed for years by court battles is likely a failed one. Congress and the Executive Branch can mitigate this risk with virtually no cost by updating and clarifying the statutory language of the Defense Production Act and in doing so sending a clear message of congressional intent to courts and to would be litigants.