Bush Wage Cuts for Relief Workers May Be Based on Legal Error
On September 8, President Bush issued a proclamation suspending the minimum wage requirements for relief workers engaged in Katrina recovery operations. But in order to do so, he relied upon a statutory authority that has been dormant for thirty years and that appears to be legally inoperative.
"I find that the conditions caused by Hurricane Katrina constitute a 'national emergency' within the meaning of section 3147 of title 40, United States Code," President Bush declared on September 8 as he removed the Davis Bacon Act wage supports for workers in Louisiana, and portions of Mississippi, Alabama and Florida.
But this emergency statute was one of numerous authorities that were rendered dormant by the National Emergencies Act of 1976, and that can only be activated by certain procedural formalities that were absent in this case.
In particular, the President must formally declare a national emergency under the National Emergencies Act, and he must specify which standby legal authorities he proposes to activate so as to permit congressional restraint of emergency powers.
Strangely, however, President Bush proceeded as if the National Emergencies Act did not exist.
The September 8 presidential declaration was "an anomaly,"
according to a new Congressional Research Service assessment, and it did not follow "the historical pattern of declaring a national emergency to activate the suspension authority."
"The propriety of the President's action in this case may be ultimately determined in the courts," the CRS report stated delicately.
The newly updated CRS report, written by Harold C. Relyea, traces the evolution of emergency powers and includes a tabulation of declared national emergencies from 1976-2005.
See "National Emergency Powers," Congressional Research Service, updated September 15, 2005 (esp. pp. 18-19):
The President's September 8 proclamation is here:
Why would the President deviate from established practice in this way?
One subject matter expert consulted by Secrecy News rejected the idea that there was any self-interested motive at work, and noted that the President had properly invoked the National Emergencies Act in previous cases.
"I think it's just poor staff work at the White House," he said.
But if it was an innocent mistake, that doesn't mean it is an inconsequential one.
"The hell-to-pay could come if a union or some affected worker decides this [wage cut] was improperly done" and files a lawsuit to challenge it, a possibility implicitly raised by the CRS above.
Meanwhile, taking the President's proclamation at face value, Rep.
George Miller and several dozen other members of Congress introduced a bill to undo what the President has proposed.
H.R. 3763, introduced on September 14, would "reinstate the application of the wage requirements of the Davis-Bacon Act to Federal contracts in areas affected by Hurricane Katrina."
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