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February 09, 2011

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Norman Williams

I don't want to defend the notion that all waivers are per se constitutional, but I am certain that the claim that any and all waivers are per se unconstitutional is mistaken. The Executive often decides who to prosecute and who not, and that practice, which is just a different form of executive waiver, has been blessed by the Supreme Court. Moreover, many laws, including significant foreign affairs and environmental laws, have waiver provisions. Finally, I doubt the reverse delegation analysis: unlike a classic non-delegation case, where the Executive is constraining liberty by promulgating a regulation, a waiver is promoting liberty by exempting the private party from compliance with a regulatory measure. The equal protection and federal bribery statute undoubtedly constrain the Executive's ability to grants waivers to particular entities for particular, forbidden reasons (race, bribery, etc.), but granting waivers to entities who just happen to be political supporters does not constitute bribery absent a quid pro quo, and such waivers surely don't implicate a suspect class. Such political favoritism is infuriating -- the previous Administration had a penchant for exempting many defense contracts from public procurement rules to favor its supporters, but critics of healthcare reform were notably silent then -- but that problem seems more appropriate for resolution via the political process than constitutional fiat.

Joe

Wouldn't Medicaid be unconstitutional under this theory? DHHS has the statutory power to -- and does, with respect to almost every state -- waive compliance with various requirements. (If a state wants to implement an in-home care program not permitted under current guidelines, for example, it can request a waiver from DHHS that is usually given.)

cc

Prof. Massey's former student smiles broadly to herself, 'he reads NRO!' i've been known to read it on the beach, at great personal risk... ;)

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