After the Revolution of 1688, in the English Declaration of Rights, Parliament declared the royal exercise of either power to be illegal, except where authorized by statute. As a result, what nowadays are called “waivers” were lawful only by legislative delegation.
Americans went even farther: In their state constitutions, they followed the English pattern of recognizing legislative delegation of the power to suspend laws, but they entirely rejected the dispensing power. The suspending power seemed to be a specialized, temporary type of legislation, and its legislative character was so widely accepted that when state constitutions established their legislatures, they did not have to spell out that the legislative power included a power to suspend. Instead, the state constitutions merely provided that the suspending power should never be exercised except by the legislature or under its authority — the goal being to leave room for legislative delegation of the suspending power to the executive.
Constitutions, however, could take different paths. Although the U.S. Constitution followed the state constitutions in simply assuming that suspension was part of the legislative power, it did nothing to authorize delegation of the suspending power to the executive.
Even more strikingly, no American constitution, state or federal, allowed dispensation, let alone its delegation. Nor should this be a surprise. The power to dispense with the laws had no place in a constitution that divided the active power of government into executive and legislative powers. The dispensing power was not a power to make laws, nor even a power to repeal laws, but rather a power to relieve individuals of their obligation under a law that remained in effect. It thus was a power exercised not through and under the law, but above it.
Of course, after a violation of a statute, the executive could refrain from prosecuting the offender or even pardon him. Until the legislature changed the law, however, neither the legislature nor the executive could simply tell a favored person that he was not bound by it.
Waivers can be used for good purposes. But since the time of Matthew Paris, they have been recognized as a power above the law — a power used by government to co-opt powerful constituencies by freeing them from the law. Like old English kings, the current administration is claiming such a power to decide that some people do not have to follow the law. This is dangerous, above the law, and unauthorized by the Constitution.
— Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.