Are Health-Care Waivers Unconstitutional?

"The only way to keep your health is to eat what you don't want, drink what you don't like, and do what you'd rather not."
-Mark Twain

Philip Hamburger, a Professor of Law at Columbia Law School, has posted an intriguing article entitled, Are Health-Care Waivers Unconstitutional? He points out that there has been much debate over the constitutionality of ObamaCare, up to and including a Florida Judge voiding the law. But no one is questioning the legality of the 733 waivers given to unions, hospitals, and insurance companies. The political ethics of the waivers has been questioned but not their constitutionality.

Think about what a waiver means. The Executive branch of government, in the person of the President, is granting favored individuals or corporations exemption from a law. This undermines the United States as a nation where all are "equal" under the Law. Professor Hamburger notes that Congress may pass unequal laws, laws that tax some companies but not others, but once a Bill becomes Law it is binding upon everyone described by the bill.

Under our constitution a law may be voided in two ways, the Supreme Court may overturn it or the Congress may pass a new law replacing or voiding the an old law. But can a President refuse to enforce a law?  ChestOfBooks.com has a post on the topic, Obligation Of The President To Enforce Laws Believed By Him To Be Unconstitutional, which makes this point,

The President is an agent selected by the people, for the express purpose of seeing that the laws of the land are executed. If, upon his own judgment, he refuse to execute a law and thus nullifies it, he is arrogating to himself controlling legislative functions, and laws have but an advisory, recommendatory character, depending for power upon the good-will of the President. ...The President has not been given the power to defeat the will of the people or of the legislature as embodied in law.

In 1867 Congress passed the Tenure of Office Act, enacted over the veto of President Andrew Johnson, which denied the President of the United States the power to remove a Cabinet Official who had been appointed by a past President without the advice and consent of the United States Senate. Andrew Johnson refused to accept the law and fired Secretary of War Edwin Stanton which led to Congress holding Impeachment hearings for the President's refusal to uphold the Tenure of Office Act. Johnson won his Impeachment trial by a single vote in the Senate.

Did this set a legal precendent for a President to refuse to enforce or obey a law he considers unconstitutional? I'm not sure and I suspect that issue is still open to debate. See http://www.justice.gov/olc/nonexcut.htm for more details. But let's set that aside and return to waivers. A waiver is not issued over constitutional concerns. It's not issued equally to everyone over some objection to a law. In the instance of ObamaCare we're talking about a law the President passionately endorses! Instead waivers represent an arbitrary Executive decision regarding over whom the law will be enforced and who gets to ignore it. Professor Hamburger notes that there is historical precedent for this - but it's a precedent for Kings who are above the Law. The American constitution was carefully created to breakup Kingly power between the three branches of government so that no single individual or legislative body had total power.

Bottom Line

When the current session of Congress convened in January of 2010 with a new Republican majority, their first act of business was to read aloud the entire Constitution before the assembly. Their opponents mocked them for this. But it was done as a reminder that all branches of government are governed by the Constitution and must live within its restrictions. That is a lesson our Federal government appears to have forgotten.