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.
As argued in these pages, 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.
Of course, the HHS regulations emphasize that the waivers merely reach regulatory requirements, not the underlying statutory requirement. The statute, however, suggests otherwise. It bluntly requires health plans and insurers to comply with the restricted annual limit. Thus, when the secretary waives compliance with this limit, HHS is not only waiving compliance with the regulations that specify the limit but also is waiving compliance with the statute.
Of course, because the secretary is granted the authority to determine the restricted annual limit, she can determine a very low limit, and HHS apparently believes that the waivers are merely a way of adjusting the limit. But the statute requires plans and insurers to comply with the applicable limit, and the waivers excuse them from such compliance. It is therefore difficult to avoid the conclusion that the waivers dispense not simply with regulations but also with the statute.
Once again, confirmation comes from HHS. Recognizing that the waivers deprive many individuals of their rights, HHS has required recipients of waivers to notify their participants and subscribers. To satisfy this notice requirement, a plan or insurer must inform the affected individuals that “The Affordable Care Act prohibits health plans from applying arbitrary dollar limits for coverage for key benefits,” and that “Your health insurance coverage . . . does not meet the minimum standards required by the Affordable Care Act.”As evident from the added emphases, the notice candidly explains that HHS has waived a limit imposed by statute.
Thus, not once, but twice, the constitutional defense of the waivers collapses at the statutory level. Even if Congress could delegate the power to grant waivers, it has not done so here. Moreover, even if the executive could waive regulations, this does not help where, as here, it has waived the statute. The justifications of the health-care waivers therefore are irrelevant. Not merely constitutionally mistaken, they are factually beside the point.
Having brought the constitutional dispute down to the statutory level, this essay must close by bringing it down further, to the level of contract. It is widely assumed that waivers merely threaten the structure of government. But they also deprive individuals of their contractual rights, and this points to a legal remedy.
The plans and insurers restricted by the health-care law have contracts with numerous individuals, who therefore have a right to coverage. The health-care law requires their coverage to come up to specified amounts, thus rendering void any contractual annual limits that fail to reach these amounts. As a result, the individuals have contractual rights to the higher amounts, and when plans or insurers rely on waivers to avoid complying with the statute and its regulations, they are in breach of their contracts. The affected individuals therefore have contractual or related statutory causes of action against their plans or insurers.
This matters, of course, not only for the individuals, but also for the political alliances that allowed the administration to secure passage of its health-care law. Many of the corporations and unions that supported adoption of the statute have subsequently obtained waivers freeing them from their most onerous burden under the statute. Now, however, these same corporations and unions could face liability for relying on such waivers. It is a reminder of the felicitous overlap between irony and justice.
More concretely, the point is the unreality of the defenses that have thus far been offered for the health-care waivers. Not merely constitutionally weak, they also are statutorily irrelevant. Fortunately, contract rights point to a remedy.
— Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.