We are experiencing a pandemic. Therefore, people are legally correct to react negatively to presidential son-in-law Jared Kushner‘s verbatim stance about the strategic national stockpile of medical supplies. Kushner’s understanding of the way the law is meant to operate might be correct, but his articulation of the law’s purpose and function is not.
“The notion of the federal stockpile was that it’s supposed to be our stockpile; it’s not supposed to be state stockpiles that they then use,” Kushner said. “So, we’re encouraging the states to make sure that they’re assessing the needs, they’re getting the data from their local — uh — situations, and then trying to fill it with the supplies that we’ve given them.”
For starters, the name of the stockpile is the “strategic national stockpile” (emphasis ours). That is what it is called in the United States Code. It is not the “federal stockpile,” which is what Kushner called it. By using the wrong verbiage, Kushner attached a “hands off — this is mine!” meaning to the statute which is not even contemplated in the law’s actual name. Such an an attitude is further not contemplated in the law’s functional mechanics.
As I first discussed weeks ago, the strategic national stockpile, written in the wake of the 9/11 terrorist attacks, requires the Secretary of Health and Human Services to:
“[M]aintain a stockpile or stockpiles of drugs, vaccines and other biological products, medical devices, and other supplies in such numbers, types, and amounts as are determined . . . to be appropriate and practicable, taking into account other available sources, to provide for and optimize the emergency health security of the United States, including the emergency health security of children and other vulnerable populations, in the event of a bioterrorist attack or other public health emergency.”
That language is very clear and very important. The law also requires an annual “threat-based review” to ensure the stockpile is up to task. The law’s aim is to protect American citizens.
What about state and local governments? The law says that the Secretary of Health and Human Services (that’s one of Donald Trump’s cabinet members) must consult “with Federal, State, and local officials” about “the availability, deployment, dispensing, and administration of countermeasures” contained in the stockpile. The HHS secretary must also under the law “devise plans for effective and timely supply-chain management” of the stockpile “in consultation with . . . State, local, Tribal, and territorial agencies; and the public and private health care infrastructure, as applicable.” Finally, to this end, the law requires the HHS Secretary to “provide assistance, including technical assistance, to maintain and improve State and local public health preparedness capabilities to distribute and dispense medical countermeasures and products from the stockpile.” In other words, the statute is all about working with the states. After all, the strategic national stockpile is contained in a section of the United States Code which is very clearly titled “Federal-State Cooperation.”
Kushner is correct inasmuch that federal officials make the final call on where the supplies go. (Actually, two federal officials have a say: the Secretary of Homeland Security [Chad Wolf] and the Secretary of Health and Human Services [Alex Azar] are both allowed to order deployments.) Neither of those officials is named Jared Kushner.
The HHS and Homeland Security secretaries are supposed to be on the phone with state and local governments to figure out who gets what. Kushner called out some local officials for asking for ventilators even while the nearest COVID-19 patient is four counties way. He indicated the materials needed to go where they were most needed and that the federal government needed data to ensure serious needs were being met. That suggests the core thrust of the law is likely being followed — at least to some degree — as to dispensing what is available. Questions remain as to why material wasn’t dispensed earlier, why material was expired or even rotten, why there isn’t enough in the stockpile to go around, and why some officials have boldly said the stockpile isn’t meant for things like COVID-19. (It’s worth noting that the stockpile can be legally deployed before things hit the fan: “actual or potential public health emergency” deployments are allowed.)
The vast thrust of Kushner’s statements involved data points suggesting there is federal/state cooperation occuring, but to say the stockpile is “federal” and “ours” is an inaccurate summation of a law likely designed to prevent state competition for supplies, a situation about which the governors of Maryland, Massachusetts, Michigan, New Jersey, and New York — Democrats and Republicans — have all complained. New York Gov. Andrew Cuomo said his quest for supplies was “like being on eBay with 50 other states, bidding on a ventilator.” The concept of a national stockpile is supposed to prevent that.
[Photo by MANDEL NGAN/AFP via Getty Images.]
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