Five years ago, in the midst of another crisis in the Gulf of Mexico, the Bush administration waived the Jones Act, easing the way for foreign vessels to move in U.S. waters and between ports. The decision came with the administration under duress for its handling of Hurricane Katrina.

Today the Obama administration faces a different set of challenges with the Gulf oil spill cleanup. 

But unlike his predecessor, President Obama has declined to suspend the law, even temporarily.

Obama's decision has turned into a public relations headache for an administration already reeling from its oversight of the oil spill. European allies, longtime opponents of the Jones Act, have asserted they were turned away when making offers of assistance. The State Department acknowledges it has had 21 aid offers from 17 countries.

Critics in both parties are now seizing on the issue to question the administration's competence. It took center stage at a House subcommittee hearing Thursday.

Some critics have suggested that Obama is protecting the pocketbooks of his union allies by keeping foreign vessels at bay. But several Jones Act experts told me that makes little sense because unions have minimal influence in the Gulf. Foreign competition, therefore, would do little to hurt their bottom line.

In addition, the Seafarers International Union, while supporters of the Jones Act, maintained good relations with the Bush administration. In 2000, the union donated $3,544 to candidate George W. Bush and nothing to Democrat Al Gore. Bush benefited with a $2,000 donation in 2004, while Sen. John Kerry (D-Mass.) received nothing. The union didn’t donate any money to candidate Obama in 2008.

So why won't the Obama administration simply issue a blanket waiver, just as the Bush administration did in 2005? It would end the controversy and quiet a growing chorus of critics.

The administration defends its stance by citing a well-established waiver process for foreign vessels. In short, a request to U.S. Customs and Border Protection prompts an inquiry to the Maritime Administration, which leads to a search of the U.S. fleet. If an American ship can provide the same services, the request is denied. Otherwise, the foreign vessel gets a waiver.

That process differs from a blanket waiver -- the tactic used by then-Homeland Security Secretary Michael Chertoff in 2005 after Hurricanes Katrina and Rita. The Bush administration justified the move by citing a need to transport oil and gasoline in the Gulf region.

Jones Act expert Charlie Papavizas said the 2005 Katrina waiver, which lasted from Sept. 1 to Sept. 19, was used primarily to move cargo between ports, but it didn't result in any new foreign ships in the region. "Twenty days is not enough time to reposition and do anything useful," he said.
Mark Ruge, who works with the Maritime Cabotage Task Force, was even blunter: "After the fact, if you look at Katrina and ask, ‘What was the advantage to the United States of America by blanket waiving the Jones Act?’ The answer is nothing came of that -- nothing that couldn't have been accomplished with the usual process. It was just one more thing you could say you did."

The Obama administration's critics think otherwise and show no signs of relenting.

Sen. George LeMieux (R-Fla.) pressed the president on the Jones Act during a recent face-to-face meeting. LeMieux said the action would signal America's allies that their help is wanted. Given the dire situation in the Gulf, what's the harm?

Two other members from Florida, Reps. Corrine Brown (D) and John Mica (R), said their state is suffering while skimmers sit idle. At a hearing on Thursday, Brown held up of vessels in Mexico and Norway, asking, "What is the process for the state to take advantage of skimmers from other countries?"

Mica trained his criticism on Homeland Security Secretary Janet Napolitano for failing to mobilize the entire American fleet. "U.S.-flag vessels have the capacity to bolster the current oil skimming and removal taking place in the Gulf of Mexico," he said. "Over the last couple of weeks, we have seen oil products wash up on the shores of Louisiana, Mississippi, Alabama and Florida while vessels, which could have been pressed into service, sit idle. This is unacceptable."

With the spill cleanup reaching its 63rd day, is it too late for a Jones Act waiver to have an impact? LeMiuex believes there's still time for foreign vessels to help near the coast, given the uncertainty about how long the cleanup will last. He's disappointed it has taken the administration so long to act.

This, of course, is the primary criticism of the Obama administration's handling of the spill. While the president says he "will not settle for inaction," his failure to waive the Jones Act -- even if for the sole purpose of sending a message to our allies -- suggests he's not doing everything he can.

Robert B. Bluey directs the Center for Media and Public Policy at The Heritage Foundation.