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The Right Prescription
King Barack’s Waivers
Special dispensations from the law of the land would be familiar to any medieval monarch.
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.”
About the Author
David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.
Letter to the Editor View all comments (36) | Leave a comment
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Robbins Mitchell| 4.8.11 @ 6:24AM
Well,I am invoking the doctrine of 'individual sovereignty' to grant myself a waiver from ObozoCare....and frankly,I hope this 'government' tries to do something about it...I'm spoiling for a good fight with this bunch.
Intelligent Design| 4.8.11 @ 7:31AM
When the king decides who must obey the law and who doesn't, then there is no need for a legislature, or voters, or a judiciary, or a Constitution. The president is suppose to uphold the law, not dictate it. Obama doesn't uphold it, but he thinks he can dictate it.
But in fact Congress has a long history of giving the executive branch too much power, so that the regulatory agencies decide the substance of laws in a wide range of areas: banking, nuclear power, food and drug safety, farming, transportation, and now our individual medical care. The Constitution does not give unelected bureaucrats the power to make law, but Congress and the dumbed down electorate has done that. It's time for real change, starting with the repeal of Obamacare, followed by dismantling the Department of Education, and like that......
bobu| 4.8.11 @ 7:35AM
RM: What a coincidence! I also have granted myself a waiver, every bit as valid as those bestowed by King BO I...rju
Southern_Comment| 4.8.11 @ 8:08AM
I've never referred to him as a king, but I do refer to him as Poobah Obama - mainly because his presidency shows about as much leadership as a Fred Flintstone cartoon, and includes the same level of unjustified arrogance that Fred always showed Barney.
As for the waivers - how long will it take for them to be declared null and void? Hopefully in time for those companies to stop payment on their election contributions.
Gordon W.| 4.8.11 @ 8:19AM
Thanks for just telling me there are exemptions and that you are mad about it. But didn't a lot of people say they didn't want the health care act. Now the act insures there are people exempted from it so they are not over compensated and money is thus not wasted.
Why not list the exemptions you are mad about in specific and say why? Would take just as long...
Redstateboy| 4.8.11 @ 8:36AM
How do I git mee one of them thar waivers?
A. C. Santore| 4.8.11 @ 8:49AM
It will be instructive to read again The Declaration of Independence, with most careful to attention to the "long train of abuses" of the English king we overthrew. Then compare them with Obama's own long train of abuses.
http://www.nationalcenter.org/.....dence.html
PJ| 4.8.11 @ 9:00AM
What is this? Writing about Hypocritical, God-like Oafs in The American Spectator Day. First Buffet, now this numbnut & his obvious hypocrisy that drives me nuts because it negatively affects how my family lives .
Hey American Spectator-----Can you keep it to 1 obvious schmuck/day, please!
Zexufang| 4.8.11 @ 9:11AM
Presidential waivers undermine Obamacare as the "Law of the Land".
As a ruse, every governor should petition the federal government for a comprehensive state waiver.
This way the individual is shielded from federal over-reach by state power.
And for those who still want Obamacare maybe they could just voluntarily "sign-up".
You know – freedom – what a concept.
Paging Thomas Paine… where are you? We need you.
Southern_Comment| 4.8.11 @ 9:11AM
The waivers are being asked for because thanks to the passing of that healthcare plan 'We have to pass it to find out what's in it' , many employers would have to drop the 'minimed' insurance currently offered to low income and part time employees. This is one of the 'finding out what's in it' problems.
Were we not told
"Everyone gets to keep their health insurance.
I guess they must have whispered the part about 'if you are a union, friend to Obama, or beg properly' . Of course, they don't really have to beg the White House will be happy to issue those to avoid the public relations disaster that would cause. If companies are having to pay so much more out in insurance then guess what they will not have the money to do? Hire people. Why would they especially now, if they don't have the waiver - hiring wouldn't be a salary that's small potatoes, nope hiring would mean having to pay some huge insurance rate.
I do however find it interesting, that unions receive over 1/4 of the waivers, but only 12 percent of Americans belong to unions. I also find it interesting that the SEIU, who has been granted a waiver will also be dropping children from their insurance plans.
As for a company such as McDonalds - well I would say that considering part of the benefit of having companies like McDonalds, is that they are willing to open shops in very low income areas and hence provide income that would not be there otherwise. The benefit for the employee is they not only have the income, but they also get to learn in a structured environment and that could lead to better things namely being able to adapt to a professional environment. I would say they should have been granted a waiver, but since that health care plan should not have been forced on the people in the first place . . . .
Southern_Comment| 4.8.11 @ 9:38AM
Some of the industries and unions that have received waivers:
•Several different local union chapters, including the Teamsters, SEIU, UFCW, Steelworkers, Communications Workers of America, Social Service Employees Union, United Federation of Teachers, public sector unions including police officers’ unions
•Lots of local schools
•Several specialized health service providers for issues including mental health, eye care, and x-ray and imaging companies, and rehabilitation centers
•Small banks and financial institutions
Look at that list. Why would the Teachers Union and local schools be given a waiver? I don't know about most states - but in my state, they pay $2 a paycheck for their insurance and it's really good insurance - so why the waiver? The unions being granted these waivers makes no sense, well unless you consider that the union executives have completely depleted their funds. Then they'd have to resort to thug style survival tactics everywhere with exception to one location. . . 1200 Pennsylvania Ave. They've got a great friend in the Poobah.
Timothy L. Pennell| 4.8.11 @ 9:50AM
I disagree. This goes far beyond anything that you're contemplating.
"We are the ones we've been waiting for"?
You're assuming that he's talking to us.
"And I saw the BEAST rise from the Sea. And he was given a MOUTH, to speak Haughty and Blasphemous words. ("We are the ones we've been waiting for.") And he was allowed to exercise authority for forty two months." Revelation 13-5.
HAMAS is selling Drinking Mugs with Obama's picture on them. He is wearing an Arab Headpiece. He has the traditional Muslim Dishtowel around his neck. They have given him the name: ABU HUSSAIN. I'm told that ABU HUSSAIN means - Son of my Father. Hmmm. Sounds Messianic. They BELIEVE that he has been sent by Allah. They BELIEVE that he is their DELIVEROR. He is "The ONE" they've been waiting for.
The Muslim world is experiencing a Metamorphosis. The Centuries old HATREDS, between Shiite and Sunni, Persian and Arab, are being put aside, for a COMMON CAUSE. Their dream of a CALIPHATE, they feel, is now.
Why do they feel this way?
Because THEY KNOW that one of their own, sits in the White House. The only Country ,that could possibly stand against them, in their quest to DESTROY ISRAEL, is led by one of their own kind. He is "THE ONE" that they've been waiting for.
Am I the only one who can see this?
Tell me how I'm wrong.
Tell me: WHY NOW?
WHY does HAMAS believe ?
And why do YOU continue to deny what your EYES are showing you?
George S| 4.8.11 @ 10:01AM
Dispensations granted against a law that was declared unconstitutional, yet in force. King? Whatchoo talkin about, Willis?
Al Adab| 4.8.11 @ 11:43AM
A clear vision into what these united States have become, a nation ruled by men not by law.
Oldefarte| 4.8.11 @ 11:43AM
He is not a king, and he may not even be a CITIZEN [I stand to be corrected only if his long form birth ceritificate is ever miraculously produced, due to demand, prior to November of 2012]!!!!!!!!!!!!
Al Adab| 4.8.11 @ 12:14PM
Morning O F:
Sad to say, the fact that his mother was a American citizen grants him that status even if born on foreign soil. What this article demonstrates is the attitude of The Left that in fact we elect Monarchs not executives and that their writ is law. We simply await the day when they feel elections are expensive and so contentious that we can just ignore their necessity. Certainly American subjects won't mind forgoing such disruptive activities in the interests of civility. President for Life is such a clear title.
The Bishop| 4.8.11 @ 12:38PM
This is an excellent article and more attention should be called to these monarchical dispensations. May I get a "waiver" from the requirements of Title 26 (the Internal Revenue Code)?
Bill Sundling| 4.8.11 @ 1:29PM
It's more like the Catholic Church and the sale of indulgences.
Rick| 4.8.11 @ 1:47PM
Your a rasist!
David W| 4.8.11 @ 1:51PM
two possible solutions - the House passes a law that gives everyone a waiver that is indefinite, OR the House passes a law that prohibits the granting of waivers and rescinds any existing waivers. The first would probably be the easiest and less troublesome (the libtards would attack the House if existing waivers were rescinded - think of the poor McDonalds' workers!!!!).
Wayne | 4.8.11 @ 2:18PM
Well what would keep the next president from giving everyone a waiver? Heck I would use it in my campaign.
cicero| 4.8.11 @ 2:51PM
Southern Comment, that $2 contribution by the teachers is just that - their contribution. That is toward a much higher premium, the rest of which is paid for by the taxpayer. In Michigan, the health insurer of the teachers' union members is owned by the Union. See = no more big mystery.
The real plan comes into focus when the Plan finally kicks in. All employers will have to join the government plan, or provide private coverage for their employees. The government plan is to be paid for (initially) by a contribution of an 8% payroll tax. In virtually all cases, the 8% will be much less expensive than the private plan. Once everybody is on board, it will become apparent that the 8% only convers a small fraction of the actual cost, so the contribution will have to go up - dramatically. Welcome to socialized medicine.
Clint| 4.8.11 @ 3:24PM
Why even go there? It's not selling indulgences nor tithing.
It's Obama giving "Payback" to His Loyal Followers.
The Tea Party Ramps Up To The Tax Day Rallies.
Walk Your Talk.
The Big E| 4.8.11 @ 4:55PM
Obama is merely acting as his own Unification Board, passing out dispensations according to "special need."
If we are to salvage any liberty at all, this loser has GOT to GO.
BUT . . . .
THE REPLY TO COMMENT BUTTON HAS GOT TO RETURN!!!!! Please.
Michael L. Hauschild| 4.8.11 @ 7:22PM
Fornication Under Consent of the King.
Al Adab| 4.8.11 @ 7:28PM
Actually Michael it's from a crime sign that once hung on those placed in the stocks for offences; For Unlawful Carnal Knowledge.
Yosemeti Sam| 4.8.11 @ 9:51PM
" ... 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...."
Um, speaking of general procedures, did the original 'framers' READ what they signed into Constitutional Law?
Dee See| 4.8.11 @ 10:52PM
---IF Americans would STOP falling for
Rockefeller/Bilderberg/Rothchild/RIIA
cardboard we wouldn't continually be in
this mess.
Retroactive IMPEACHMENT of our past
4 Globalist-EUGENIST front op administrations.
DEFAULT on the phoney debt, followed by
swift and unflinching prosecution of the involved
parties for conspiracy against our sovereignty,
our republic, and EUGENICS crimes worldwide.
ANY QUESTIONS?
Johnny| 4.9.11 @ 9:57AM
We are moving ever closer to the day that only those who can revert to self sustaining ways will survive this nations transformation to a very lowly third word nation. I really feel for the urban dwellers who cannot grow or forage for the basics we all need to survive. Lets go back to the early 1900's now, horses, mules to plow etc.... The Amish(?) could teach us an awful lot....
Amfortas| 4.9.11 @ 10:23PM
It was a sad day that the American People revolted against the British Crown. It had become a quite beingn crown by then, over-ruled by the Parliament of the People, and the the 'tax' that caused so much bother was to pay for the Royal Navy's protection of American trade across the Atlantic, from the French. As it transpired, the poor old 'Free' new Americans had to cought up three times as much to hire the Royal Navy to carry on doing what they had been doing before the War of Independance. A bit of a shot in the foot.
The 'new' American President was more powerful than the King he replaced, although flim-flam documents pretended otherwise. So it is apparant today.
So much would have been very different today, as the American Colony, the favourite son of the British Empire, would have inherited a quarter of the world united and relatively grateful. Instead it stole the parental horse and cart and buggered off with all the furniture, spitting resentfully on sad parents who had given so much.
But you can't keep an adolescent King down for long and now we reap the whirlwind of entitlement.
You would have been far better off with Queen Elizabeth as your Commander in Chief and Monarch.
Alan Brooks| 4.9.11 @ 11:42PM
At least Obama wont waste an entire eight years as Bush did.
Mike C| 4.10.11 @ 1:01AM
What ever happened to the silly little thing called the 14th Amendment to the Constitution of the United States of America? You know, the one that said something about "equal protection under the law". The one that said all laws apply equally to all persons (regardless of union status).
Oh I forgot. Obama is a Constitutional scholar so he probably wrote that one out of the Constitution by Executive Order. The one granting the New Black Panthers immunity from prosecution and the unions super citizen status.
Rowdy Boots| 4.10.11 @ 10:33AM
Men and Women have died for our Freedoms and now this Bastard has the Audacity to Deny Americans their rights?
NIXON WAS FORCED TO RESIGN--I THINK NOW IMPEACHMENT IS A VIABLE ROAD TO GET RID OF THIS PUNK.
bill| 4.10.11 @ 5:38PM
the purpose of obamacare was never about healthcare, it has always been about power and control; hence, companies and unions begging for waviers.
obamacare is also an example of why there are so many lobbyists. as the government grows and gains more and more control of the economy and people, the size of the army of lobbyists swells.
i remember when michelle obama just after the election made the statement that "barack would not allow that to happen once he RULES". i also heard senior advisors talking about obama "ruling". the last time i checked, american presidents "govern" not "rule". tyrants, kings and dictators "rule".
based on obama's comments and actions over the last 2+ years, those "ruler" comments seem to fit how obama sees his role as president.
syd chaden| 4.10.11 @ 7:02PM
The Republicans should introduce and pass a bill, in the House, citing the numerous waivers already given by Obama, that will give all citizens equal rights under the law by affording a waiver to whoever may request it. The discussion on the floor will at least give some airing of the matter, if the mainstream media won't.
Creative Recreation | 8.10.11 @ 10:33PM
is good