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The PJ Tatler

by
Dan Miller

Bio

September 13, 2011 - 11:37 am

The Save Obama Bill (SOB) is 155 single spaced pages in length and has more cross references to and would make more changes in previously enacted legislation than I could conveniently count. It was obviously a long time in gestation, President Obama obviously did not dash it off while vacationing or when he returned to Washington and, if it is to be rationally analyzed, will require no less time to evaluate. If that is not done, this will be another “pass it to find out what’s in it moment.”

If enacted, it would confer tremendous discretionary authority on various administrative agencies and other entities, some new.  For example, section 4, at pages 4 – 5, is entitled “BUY AMERICAN — USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS.” And that’s what subsection (a) might do.  It provides,

(a) None of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

However,  there are also subsections (b), (c) and (d).  They provide,

(b) Subsection (a) shall not apply in any case or category of cases in which the head of the Federal department or agency involved finds that—(1) applying subsection (a) would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.

(c) If the head of a Federal department or agency determines that it is necessary to waive the application of subsection (a) based on a finding under subsection (b), the head of the department or agency shall publish in the Federal Register a detailed written justification as to why the provision is being waived.

(d) This section shall be applied in a manner consistent with United States obligations under international agreements.

This delegation motif is carried forward throughout the bill, albeit less obviously unless a side-by-side comparison with existing statutes is made; without such comparisons the bill is unintelligible.  Obviously, such comparisons will require time, energy and competence.  It will be at least as difficult and time consuming to understand and probably change the thing, if only to minimize unforeseen consequences, as it was to write it.

President Obama’s repeated urgings that the bill be passed now, as distinguished from when it has been analyzed adequately, is typically disingenuous.  He said the Congress must “act immediately on his new jobs plan, brandishing a copy of the legislation in the Rose Garden and demanding: ‘No games, no politics, no delays.’”  Were the Congress to obey his command, it would be derelict in the performance of its duties under the Constitution and to the people its members are there to represent.

Were the Congress to pass any part of the SOB, without analyzing the whole, it would be similarly derelict because most if not all parts are interdependent.  Yet that is President Obama’s fallback position should the Congress not simply enact the whole thing without bothering to figure out what it means.

The Obama White House is revising its initial unwillingness to negotiate on the president’s job creation plan, saying now that if individual components of the bill came to the president’s desk — as opposed to the bill in its entirety — he would sign them into law.

The new approach opens up the administration to charges that it no longer views the American Jobs Act as a take-it-or-leave-it bill. But in a briefing with reporters Tuesday, senior administration officials insisted President Obama wasn’t backing off his position that he wants the entire bill passed through Congress.

That is not “bipartisan;” it is silly and mendacious partisanship at its finest. It is to be hoped that the Congress will not accept the invitation to join in that silliness.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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