Strengthening Constitutional Self-Government

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Health Care

Obama Administration Lawlessness

A prime example of the Obama Administration's lawless behavior is its exemption of entities from the legislation Congress passed and he signed into law--waivers.  The sober Columbia University law professor Philip Hamburger (see his Separation of Church and State) has pointed out how the Obama Administration has undermined the rule of law and the separation of powers, and led us back into the Middle Ages with its practices:

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? ....

As it happens, waivers have a history. In the Middle Ages, the pope granted waivers, known as dispensations, and English kings soon followed suit....

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Discussions - 2 Comments

What exactly did you think Obama ment when in the debates with McCain he said that his methods were too broad based, and that instead of using a hachet, he would prefer to use a scalpel?

Appart from the hachet v. scalpel one liner, I think it is clear that he was in favor of a sort of smart bomb approach involving more informal adjudication/ waivers.

McCain was essentially saying: to deal with the deficit, I am going to urge congress to cut funding for entire programs, something that can be done by congress...

Obama: hold on there killer, rather than a congress going around rashly axeing things to appear to be principled, we need to take feedback from the administrative agencies into consideration and see that we are funding programs that actually accomplish what they intend.

Also to be perfectly clear it isn't exactly the executive branch. Obama himself has I might guess almost nothing to do with the waivers. So in a sense Obama does not hold the scalpel.

The scalpel, for the 700+ waivers isn't even yielded by Kathleene Sebelius. Rather for the most part after inspections, conferences and negotiations between interested parties and mid to low level agency attorneys, especially if it is informal adjudication.

The legal framework is the APA, modified by the scope of the mandate statute setting forward the amount of discretion the administrative agency has in administering the law, and the standard of review is "arbitrary and capricious".

"...[R]ather than a congress going around rashly axeing things to appear to be principled..." how about a Congress, a President, and a SCOTUS going around axeing the 95 % of the Fed gov't that's grossly unConstitutional? And having a national discussion about how exactly to end the ones whose demise would arguably cause the most disruption, e.g. SocSec/Medicare? We're headed for the wall. So far we've been given the choice between accelerating more and accelerating less. No one's really talking about putting on the brakes.

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