King Barack's Waivers

King Barack's Waivers
By David Catron on 4.8.11 @ 6:08AM

When Barack Obama declared during the 2008 presidential campaign, "We are the ones we've been waiting for," I remember thinking that this imbecilic slogan was a perfectly calibrated appeal to the puerile solipsism that defines the contemporary progressive. What did not occur to me was that Obama might have been speaking in the majestic plural. Now, having observed this imperious executive in action for two years, I begin to suspect that he was using the word "we" in the same way that Queen Victoria employed it when she famously observed, "We are not amused." This would certainly be consistent with Obama's restoration of a royal prerogative, the special dispensation, that no actual monarch has had the audacity to exercise since James II of England was deposed in the "Glorious Revolution."

Obama does not, of course, call his targeted exemptions from the rigors of Obamacare "dispensations." He and his courtiers at the Department of Health & Human Services (HHS) style them "waivers." But a special dispensation by any other name is nonetheless noisome. As Columbia Law School Professor Philip Hamburger reminds us, "Waivers have a history. In the Middle Ages, the pope granted waivers, known as dispensations, and English kings soon followed suit.… The underlying justification was that the king had absolute power -- a power above the law -- and this caused consternation." In fact, it caused so much dismay that the English Bill of Rights prominently lists "assuming and exercising the power of dispensing with and suspending of laws" among the Parliament's grievances against the King.

And yet, the ululations of libertarians and conservatives notwithstanding, the Obama administration's special dispensations do not seem to have produced any serious legal challenge to their constitutionality. The only major litigation relating specifically to the Obamacare waivers is the Freedom of Information Act (FOIA) suit filed by Crossroads Grassroots Policy Strategies pursuant to the repeated failure of HHS to provide information about its processing of waiver applications. This lawsuit "seeks judicial enforcement of a FOIA request for 'any and all memoranda, guidance, directives, instructions and other documents… relating to the criteria to be applied by HHS in deciding whether to grant or deny applications for waiver of the annual limit requirements' ordered by the Obamacare law."

This is all well and good, but the waiver problem deserves far more legal attention than does a mere violation of FOIA. Indeed, it is in some ways a greater affront to our basic liberties than Obamacare's egregious individual mandate. The latter is deservedly the primary target of myriad lawsuits, one of which is serious enough to have been scheduled by the justices of the Supreme Court for an April 15 discussion concerning whether they should hear the case prior to appellate review. But Obamacare and its mandate, as outrageous as they are, were at least passed by a duly elected Congress and signed into law according the general procedure set down by the framers. Even if the individual mandate is eventually found to be unconstitutional, it came into being pursuant to a (more or less) legitimate legislative process.

But the waivers have no such claim to legitimacy. For now, as the officials of HHS and the lawyers of Obama's Department of Justice continually remind us, the ironically named Patient Protection and Affordable Care Act (PPACA) is the law of the land. And, in a nation of laws, that means no one is immune from any of its strictures unless explicitly exempted in the legislation. And, predictably, PPACA does provide a few such exceptions. The fine for not complying with individual mandate does not, for example, apply to people with certain "religious beliefs or if they are American Indians." Whether these exemptions are equitable or not, they are at least provided for in the law itself. Thus, until Obamacare is overturned by the Supreme Court or repealed after the 2012 elections, we're stuck with them.

But Obamacare does not contain any provision allowing the President, or any other member of the executive branch, to issue special dispensations at his or her pleasure. As Rep. Trey Gowdy (R-SC), chairman of the House Oversight Health subcommittee, recently put it, "the statutory basis for waiving compliance with the law appears to have been wholly neglected by the plain language of the statute." Gowdy also rejects administration claims that waivers are permitted by the broad new powers PPACA grants to the HHS Secretary: "I think it's interesting that expressed grants of waivers are provided in other pieces of the legislation, and then there's a little bit of legislative footwork or statutory interpretive footwork that has to be done to reach the conclusion with respect to this piece of legislation."

Yet King Barack I, as errant conservative Andrew Sullivan recently dubbed him, continues to issue special dispensations through his retainers at HHS. The total has now gone well above 1,100, and nearly half of the latest batch of 128 waivers went to various unions that support the President and his party with manpower and money. This, to quote Professor Hamburger again, "raises questions about whether we live under a government of laws… how can the executive branch relieve some Americans of their obligation to obey it?" One increasingly fears that Barack Obama's reply to such a query would go something like, "Because we are pleased to do so."