Are the constitutional defenses of health-care waivers persuasive? Do they even reflect an understanding of the realities of the health-care statute? And if the waivers are unconstitutional, could there be remedies in the courts?
The health-care statute requires group health plans and health insurers to raise their annual limits on coverage. In particular, it requires them to offer coverage that meets “restricted annual limits,” as determined by the secretary of health and human services. These limits, however, are so severe that, to make the health-care act practicable, HHS has given out over 1,000 waivers.
Advertisement
As argued in thesepages, these waivers are an unconstitutional exercise of the dispensing power, which creates a power above law and thereby threatens equal rights under law. The point here, however, is more basic. The constitutional defense of the health-care waivers has thus far been a defense of waivers in general, without attention to the realities of the health-care statute. As a result, the defense of the waivers not only is wrong on the Constitution but also is irrelevant to the statutory realities.
Consider, first, the argument that the waivers are constitutional because Congress can delegate a waiver power. It is sobering enough that the defenders of the health-care waivers would suggest that Congress can delegate a power it does not have. But even if Congress could do this, the delegation point would be relevant only if Congress had actually delegated a waiver power.
In fact, the health-care statute says nothing about granting HHS a power to waive the restricted annual limits. As reported by David J. Shestokas, congressman Cliff Stearns of Florida — chairman of the House Energy and Commerce subcommittee on oversight and investigations — complained, “The word ‘waiver’ is not in there. We can’t find it anywhere.”
Of course, Congress could have granted the power to waive the restrictions in a more subtle manner — for example, as part of the substantive authority granted to the secretary of HHS to determine the restricted annual limits. But statutory provisions must be understood in their statutory context, and this context shows that when Congress sought to give the secretary a waiver power, it had no difficulty doing so expressly. For example, in its provision on state innovation, the statute specifies that “The Secretary may grant a request for a waiver . . . ” In contrast, in its provision on restricted annual limits, the statute does not say anything of the sort. Evidently, Congress did not delegate a waiver power for the restricted annual limits.
This conclusion has support from an unlikely quarter. The HHS Office of Consumer Information and Insurance Oversight has been announcing and explaining the waiver program for the restricted annual limits, and it carefully distinguishes between the statute and the regulations. According to the office, whereas the “Act . . . requires the Secretary to impose restrictions on the imposition of annual limits. . . . The regulations . . . provided that these restricted annual limits may be waived by the Secretary.” Thus, even HHS appears to recognize that there is no statutory delegation.
The delegation argument thus becomes rather comic. The statute authorized the secretary of HHS to determine the restricted annual limits. On this foundation, the secretary then made regulations determining the limits and authorizing the secretary to waive those limits. The secretary thus is the source of the secretary’s power to issue the waivers. If this is delegation, it is self-delegation.
Unfortunately, it gets worse, for a second constitutional defense of the waivers has been to suggest that the executive may waive regulations, even if not statutes. This argument acknowledges the possibility that a waiver of a statute may be unconstitutional, but suggests that delegated waivers of regulations are permissible. This argument, however, collides with the reality that the health-care waivers apparently dispense with both the regulations and the statute. As a result, the narrower point about waiving regulations is irrelevant.
I just wish the SCOTUS would take this issue up, or that the 26 States opposing ObamaCare would (somehow find standing and) sue one or all of the remaining States and get this before the court.
Damage is being done and dollars are being wasted. waivers are being granted and funding is trying to be reduced. Repeal has been stalled until 2012, yet repairs to an "unConstitutional" or a "to be repealed" law is a waste of time.
Huge decisions on spending and policy are being made as States need to, and are, moving forward with their budgets. Some are planning on the implementation of ObamaCare, others are not. This beast has a major affect on local, state, and national economics. The longer this issue hangs out there in debate, the uncertainty of proper action, reaction and recourse hangs over us and stalls progress - one way or another.
First principles. It is a mandate that is unconstitutional. Therefore all that follows as outlined in this essay is the fall out of ignoring the 'Law of the Land'. I appreciate the legal arguments but what else can one expect when sophistry meets the reality of the involuntary client?
What could the federal government do if a large number of states simply refused to go along with the program? I have heard there is verbiage saying the states have to set up an exchange or the HHS will do it for them, but the exchange does not have to be participated in by the residents of the state. I suppose the feds can withhold some funds they currently provide to bribe the state to do education or infrastructure stuff. But it isn't as though they could send in the Army to execute martial law. Could they?
There is a fine/tax/fee for not getting insurance that complies with the law, but no jail time or anything. Ant the fine is capped I think, at a level lower than the increase in premiums to get a compliant insurance plan. Why not get the less expensive insurance you want, pay the fine, and move on? Insurance companies would still pay claims as they do now, but you wouldn't have to pay for anything but catastrophic coverage, if that's all you want.
rimfrel: There are already so large a number of states objecting to this leviathan that there will soon be enough for a constitutional convention to kill it for good.
Ignoring federal law has been tried before. Its called nullification. As hateful as Obamacare is, we fought a civil law to resolve the nullification question and unfortunately need to comply if it remains federal law (not that the idea of telling the feds where to go isn't a pleasant one!)
Read through this pretty quickly, and I 'm not a lawyer, so I can't comment on the legal argument presented here. It seems to depend on the idea that some people who want coverage might be denied it by the use of waivers. I have a constitutional question about people who don't want it and are exempted for religious reasons. I'm writing from Florida's west coast where there is a fairly sizeable Amish population in the winter months. According to what I've read, the Amish are exempt from the individual mandate because they participate in what the health care law defines as a "healthcare sharing ministry". They don't have to pay for a government-mandated insurance plan because they share expenses among themselves. If the mandate (as the Obama Administration's lawyers argue) is permissible as a tax, isn't there some constitutional problem with exempting individual citizens from a tax based on religious affiliation?
