The Constitutional Validity of Health Care Waivers

Columbia's Philip Hamburger has an article in NRO that argues that the Health Care waivers that HHS Secretary Sebelius has been handing out to favored suppplicants violates an implicit constitutional understanding that the executive has no power to exercise a dispensing power -- the power, once associated with royalty, to exempt persons from compliance with otherwise generally applicable laws.  While the historical record is clear that our English anestors emphatically and explicitly rejected the dispensing power, the Constitution forbids it as well.  The first grievance against James II in the 1689 Declaration of Rights was James's assumption of the power to suspend laws and dispense with their compliance.  The first two declarations were that those powers were illegal.  While the Constitution may not be as explicit as the Declaration of Rights, there is a sound reason why the Health Care waivers are not constitutional. 

Exercise of a dispensing power amounts to a partial repeal of the law.  If the President lacks authority to repeal particular provisions of a law as to everyone -- a/k/a the line item veto -- surely the same principle must forbid partial repeal as to a select few.  It doesn't matter whether Congress has explicitly given the Secretary the power to grant waivers and provided a standard for exercise of that power -- that was true of the Line Item veto as well.   

Moreover, in some circumstances the dispensing power might amount to an impermissible delegation of legislative power.  The delegation doctrine has been on the constitutional ashheap for some time, but it retains some theoretical vitality.  The doctrinal answer is that so long as Congress gives the President an ascertainable standard by which to exercise  discretion, there has been no unlawful delegation of legislative power to the executive.  If the Secretary grants or denies waivers in accord with an ascertainable standard, there is no improper delegation, but if it turns out that, as applied, the waivers are dispensed to those with political clout and denied to similarly situated but less well-connected applicants, the ascertainable standard becomes the grin of the Cheshire cat. 

Comments

[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... ;)