The constitutional dispute over the health-care law has thus far centered on the lawfulness of the statute itself — most dramatically when, last week in Florida, a federal judge held the act to be void. Waiting in the wings, however, is another constitutional question, one concerning not the statute, but waivers from it.
The Department of Health and Human Services has granted 733 waivers from one of the statute’s key requirements. The recipients of the waivers include insurers such as Oxford Health Insurance, labor organizations such as the Service Employees International Union, and employers such as PepsiCo. This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.
More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed — and therefore is binding — how can the executive branch relieve some Americans of their obligation to obey it?
The dangers of inequity are obvious. Will only corporations and unions get waivers, or can individuals also get them? For example, if a family physician feels financial pressure under the health-care law to fire one of his employees, will he get a waiver to avoid adding to unemployment?
Indeed, can even a small corporation get a waiver? Small businesses provide most new jobs, but the answer is obvious: Waivers are mostly, if not entirely, for politically significant businesses and unions that get the special attention of HHS or the White House. The rest of us must obey the laws.
As it happens, waivers have a history. In the Middle Ages, the pope granted waivers, known as dispensations, and English kings soon followed suit. Technically, these grants relied on what were called “non obstante clauses” — clauses in which the king specified that, notwithstanding a particular law, the recipient of the grant could do as he pleased. Supplementing this dispensing power was the suspending power. Whereas a dispensation waived compliance with a statute for a particular individual or corporation, a suspension waived compliance for everyone.
The underlying justification was that the king had absolute power — a power above the law — and this caused consternation. Men had speculated about God’s power to perform miracles or otherwise act above His own laws, and it was troubling enough that the pope, in imitation of God, excused individuals from canon law; but it was even more immediately worrisome that the king now was dispensing with statutes and sometimes suspending them, for this suggested that he had power above the law of the land. Recognizing the danger, the chronicler Matthew Paris in 1251 lamented the introduction of dispensing grants in England. These clauses, he complained, amounted to saying, “Notwithstanding any old liberty, the matter shall proceed.” This sort of provision allegedly provoked a judge — Roger de Thurkeby — to sigh, “Alas! Alas! . . . The civil court is now tainted by the example of the ecclesiastical one, and by the sulphurous spring the whole river is poisoned.”
By the late 17th century, Parliament restricted the suspending and dispensing powers. English kings used the suspending and especially the dispensing power for theoretically good purposes, such as to ensure religious toleration. In acting above the law, however, and thereby freeing others from the law, these monarchs revealed the danger of the suspending and dispensing powers.
After the Revolution of 1688, in the English Declaration of Rights, Parliament declared the royal exercise of either power
to be illegal, except where authorized by statute. As a result, what nowadays are called “waivers” were lawful only by legislative delegation.
Americans went even farther: In their state constitutions, they followed the English pattern of recognizing legislative delegation of the power to suspend laws, but they entirely rejected the dispensing power. The suspending power seemed to be a specialized, temporary type of legislation, and its legislative character was so widely accepted that when state constitutions established their legislatures, they did not have to spell out that the legislative power included a power to suspend. Instead, the state constitutions merely provided that the suspending power should never be exercised except by the legislature or under its authority — the goal being to leave room for legislative delegation of the suspending power to the executive.
Constitutions, however, could take different paths. Although the U.S. Constitution followed the state constitutions in simply assuming that suspension was part of the legislative power, it did nothing to authorize delegation of the suspending power to the executive.
Even more strikingly, no American constitution, state or federal, allowed dispensation, let alone its delegation. Nor should this be a surprise. The power to dispense with the laws had no place in a constitution that divided the active power of government into executive and legislative powers. The dispensing power was not a power to make laws, nor even a power to repeal laws, but rather a power to relieve individuals of their obligation under a law that remained in effect. It thus was a power exercised not through and under the law, but above it.
Of course, after a violation of a statute, the executive could refrain from prosecuting the offender or even pardon him. Until the legislature changed the law, however, neither the legislature nor the executive could simply tell a favored person that he was not bound by it.
Waivers can be used for good purposes. But since the time of Matthew Paris, they have been recognized as a power above the law — a power used by government to co-opt powerful constituencies by freeing them from the law. Like old English kings, the current administration is claiming such a power to decide that some people do not have to follow the law. This is dangerous, above the law, and unauthorized by the Constitution.
— Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.