The Defense Production Act is the law that lets a president jump the queue: order a company's output to be delivered ahead of other customers, and allocate scarce materials. The President's own authorities under it are handed down to cabinet secretaries by executive order, and the order doing that has stood since 2012.
It was amended in March, and again on September 8.
What moved
Every change adds the Secretary of the Interior next to officials who already held the authority, with each able to act "independently of the other."
- Priorities and allocations for energy. Where the 2012 order gave this to "the Secretary of Energy with respect to all forms of energy," it now reads: "the Secretary of the Interior and the Secretary of Energy with respect to all forms of energy under their purview, each of whom may exercise such delegated authority independently of the other". The words "under their purview" are new, and the order does not say where Interior's energy remit ends and Energy's begins.
- The finding that unlocks it. The same pairing is written into the section covering the written determination that a program is necessary to promote the national defense.
- Maximizing domestic energy supplies. The section delegating the authority to allocate or prioritize materials for that purpose is replaced outright: it now runs to "the Secretary of the Interior, the Secretary of Commerce, and the Secretary of Energy."
The line that vanished
That last section used to carry a limit. Under the 2012 order, Commerce held the authority, "with the exception" that the power to find materials, services and facilities "critical and essential" sat with the Energy Secretary. March's amendment added Energy alongside Commerce and left the exception in place.
The new text replaces the whole section, and the exception is not in it. The finding now sits with all three secretaries at once. The order does not mention the change, and gives no reason for it.
Where disagreements go now
If two secretaries disagree, the 2012 order sent the dispute to the President. The new text adds a first stop for energy:
if such dispute between the two Secretaries relates to any form of energy, it shall be referred in the first instance to the National Energy Dominance Council for resolution
unless it "implicates national defense infrastructure or military operations," in which case it goes to that council and the National Security Council together, both coordinating with the Department of War. The order does not say what the National Energy Dominance Council is or cite the order that created it.
What the order does not do
- It gives no reason. The section headed "Purpose" describes only what is being amended. There is no finding of shortage, no supply-chain rationale, no emergency.
- It leaves the act's money powers alone. Purchases, purchase commitments, loans and loan guarantees are untouched; this is entirely about priorities and allocations.
- No dates or amounts. No effective date, no deadline, no sunset, no dollar threshold, and no named material, mineral or project.
- No answer for conflicting orders. Four provisions let secretaries act independently of each other; the order says only where a dispute is referred, not what happens if two of them issue conflicting instructions.
- No enforceable right: "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States".
One other thing worth knowing for anyone citing it: the March order carries the identical title, so the name alone does not identify which one is meant.