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.
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.
Although by now it should be clear that waivers are dangerous, it has been argued (most thoughtfully by Jonathan Adler) that they are lawful when the power to issue waivers has been delegated by Congress. This justification, however, confuses the delegation of the dispensing power with the delegation of legislative power. It is said that because Congress has the legislative power, it can delegate lawmaking. But not even Congress has the power to waive or dispense with the law. To be sure, Congress can alter or repeal the law, but while it leaves the law in place, the law remains binding, and Congress cannot spare persons from compliance. Accordingly, Congress cannot delegate such a power.
An aspect of this point has already been recognized by the Supreme Court, which has held that an act of Congress cannot give the president a power to veto or repeal portions of a law. The implication has been noted by Calvin Massey: If Congress cannot give the president a power to suspend part of a law, how can Congress give the president a power to dispense with part of it for only some Americans — a power that would be much more dangerous?
Notwithstanding these problems, there have been suggestions that even if Congress cannot delegate a power to excuse compliance with a statute, it can delegate a power to excuse compliance with mere regulations. Yet if regulations are binding legislative enactments, then the constitutional objections to waivers apply equally to waivers of statutes and waivers of regulations. The entire theory of administrative law emphasizes that regulations are an exercise of delegated legislative power. It therefore is difficult to distinguish a waiver of a regulation from a waiver of a statute. Put simply, if one takes regulations seriously as a form of lawmaking, one cannot take seriously the argument that they can be waived.
Last but not least, it has been hinted that all of the problems could be cured with transparency and the consequent opportunities for accountability. It is not obvious, however, how transparency would avoid the dangers of favoritism, entrenching bad laws, perverse legislative incentives, power above the law, inequality, and the inability of Congress to delegate what it itself cannot do. Nor is it clear how transparency would make unlawful executive acts lawful. Even if transparency could do all of this, moreover, it has thus far been absent. Little is known about the political realities of getting waivers, and what still is hidden from view probably will remain unknown.
The point on which Americans really need transparency is how the health-care waivers can be considered constitutional. The power to waive or dispense with the law is dangerous, it cannot be delegated, and it is not cured by transparency. What then legitimizes it?
— Philip Hamburger is Maurice & Hilda Friedman Professor of Law at Columbia Law School.