Can Health-Care Waivers Be Justified? The power to waive or dispense with the law is dangerous, it cannot be delegated, and it is not cured by transparency.
Although health-care waivers are unconstitutional, can they nonetheless be justified? The Department of Health and Human Services has granted almost a thousand waivers from part of the health-care law, and (as explained last week in these pages) the waivers are an unconstitutional exercise of the dispensing power. But what if the waivers are used for good purposes? What if Congress delegated the power to issue the waivers? And what if the waiver process were transparent? Might not these considerations lend legitimacy to the waivers?
Undoubtedly, waivers or dispensations can be used for good purposes — primarily, for relief from bad laws. Yet the need for relief from a burdensome law does not mean that all forms of relief are desirable. The question therefore is not merely whether a waived law is regrettable, but whether waivers are an appropriate remedy. For hundreds of years, it has been clear that waivers or dispensations were dangerous, and this has not changed.
Advertisement
An initial concern is favoritism. One may assume that when the executive waives compliance with a law, it will grant waivers only to the most deserving applicants. Inevitably, however, it will find deserving applicants among those who have close contact with the administration, including many who are politically aligned with it.
Making matters worse, the executive tends to use waivers to co-opt political support for insupportable laws. When Americans are subject to severe legislation, they can unite to seek its repeal. All persons subject to a harsh law ordinarily must comply with it, and therefore will cooperate to fight it. Waivers, however, allow the executive to preserve such legislation by offering relief to the most powerful of those who might demand repeal, thereby purchasing their non-resistance at the cost of other Americans. Waivers thus shift the cost of objectionable laws from the powerful to others, with the overall effect of entrenching bad laws.
Waivers further undermine the political process by permitting lawmakers to escape the political consequences of drafting onerous laws. Lawmakers ordinarily have reason to worry about imposing severe rules. Waivers, however, remove the incentives for responsibly moderate legislation. Indeed, waivers transform irresponsible legislative burdens into occasions for executive beneficence.
Even more seriously, waivers are a threat to government by and under law. When the government grants a waiver or dispensation, it does not act through law, and yet it purports to liberate the recipient from the obligation of law. In other words, when the government grants a waiver, it acts above the law to permit others to act above the law, thus making waivers doubly lawless.
Waivers thereby endanger equal freedom under law. The ideal that the law is the measure of freedom and equality under government has sometimes seemed elusive in reality. Nonetheless, the ideal — most prominently expressed in the Equal Protection Clause (though that particular provision applies only to the states, not the federal government) — is one of the blessings of American society. And it has implications for waivers. Although the government can, to a degree, adopt laws that limit freedom and equality, it cannot excuse selected Americans from the obligation of the law that applies to them. In terms of equality, the government cannot give some Americans a freedom above law, for this would deprive others of their equality under law.
Is it ok for a governor to issue waivers to the tax laws for his 50 best supporters? What's the difference between that and 1000 waivers for Obamacare?
While I totally agree, I am a little confused because of the following experience:
30 years ago, my Father built a new house, designed by my Mother. While my Father's goal, of course, was total compliance to building codes, he did not know a recent revision had been made.
Upon inspection, the county inspector noted the stairway was 30" wide, and the revised code required 36" width. This stairway was a 'wrap-around' and certainly non-trivial to change at this point.
The inspector granted a waiver from the code. His reasoning, which appeared sound was that the additional 6" requirement was to assure that furniture could be carried from one floor to another. Since this stairway wrapped around an open foyer, that foyer space was more than adequate for the purposes of lifting furniture.
It was my understanding that such waivers are routine in the building industry; however, in hind-sight of reading this article, all the evils of Obamacare waivers would also apply here.
I had forgotten that bit about the legislative line item veto. SCOTUS put the kibosh on that, even though it was a very explicit delegation.
Eh, I still think the way to zap the waivers is to declare that a waiver granted to one must be granted to all. If equal protection can't apply, then how about privileges/immunities? I'm a citizen like the other guy -- gimme what you're giving him.
The type of waiver under discussion is a commodity to be sold by the political class in exchange for certain monetary or political favors. It's that simple and that crass. No fancy legal mumbo-jumbo needed.
You say that: "while it leaves the law in place, the law remains binding, and Congress cannot spare persons from compliance". In what way is Congress restrained from doing so? Congress is allowed to pass a resolution specifically exempting particular persons from particular laws, while otherwise leaving the law in place.
The prohibition on bills of attainder means Congress can't pass a law specifically subjecting named persons to disability; but there's no reverse prohibition on specifically exempting persons from obligations.
The Supreme Court did once strike down, on equal protection grounds, a law that exempted American Express from an otherwise applicable law, in Morey v. Doud (1957). But that was overruled in New Orleans v. Dukes (1976), which held that such exemptions only need pass a rational-basis test.
As I understand how the federal govt operates and has operated for many decades, laws adopted by the Congress and signed by the President are implemented by means of detailed rules and regulations adopted and implemented by various federal agencies, such as the SEC, FTC, FCC, HHR and all the others in the alphabet soup. HHR is waiving particular rules and regulations, IT IS NOT WAIVING A LAW. Federal agencies routinely waive one or more sections of their rules and regulations, sometimes for good reasons and sometimes for bad or stupid reasons, BUT UNLESS BRIBERY OR SOME OTHER UNLAWFUL TRANSGRESSION IS INVOLVED, THOSE WAIVERS ARE PERFECTLY LEGAL. Perhaps your author and commenters might wish to acquire a bit of knowledge before jumping to conclusions. And, by the way, I am totally (!) opposed to ObamaCare and eagerly support its demise.
Cheers,
Eddie
Most people support some version of fiat waivers in some context until you ask them if they would like the person or group they view as most politically dangerous in charge of issuing the waivers.
Good laws and regulations should work something like a well designed program in that the same inputs always produce the same outputs. Of course, we can perfectly do that in the real world but it is the design goal. In fact, that is what is really meant by the rule of law. People understand what output/consequence they will get from any particular input/action.
