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.”
