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Waivers Undermine Rule of Law

Since the passage of the Patient Protection and Affordability Care Act (PPACA) by a Democrat-controlled Congress and President Obama, the Department of Health and Human Services (HHS) has given out 1,372 waivers to part of the law. Of the 204 most-recently approved Obamacare waivers, 38 went to restaurants, hotels, and nightclubs in Nancy Pelosi's congressional district--almost twenty percent. Three entire states have been granted exemptions from the law, the most recent being the state of Nevada--thanks to the work by one of the Obamacare architects, Senator Harry Reid (D-NV). The vast majority of those who have received waivers are large corporations and labor unions such as McDonalds and the Teamsters.

Most of these waivers are not complete exemptions from the law, and so far do not appear to be permanent. They mostly target one section of the law that makes it illegal to place annual or lifetime limits on health plans, and most of the big businesses and unions in question currently offer limited coverage plans to some employers that would be rendered illegal due to Obamacare. Without the resources to be able to afford the more comprehensive coverage demanded by the law, businesses would need to drop coverage for their employees altogether in order to avoid being penalized. Rather than do that, they have lobbied HHS to get waivers that exempt them from this provision in the law.

The Obama Administration has justified this waiver practice by saying it avoids disruptions to some people's current health plans. It is worth noting that Congress did include language in PPACA that explicitly grants HHS authority to grant waivers to other particular provisions of the law, but did not make such permission for HHS to arbitrarily grant waivers for this portion. Thus it is no surprise that, without authority and thus without guidelines from Congress, the recipients of these generous waivers have been the wealthy, the well-connected, and the politically muscled rather than the struggling small businessman or the Midwestern farmer.

This waiver practice represents gross contempt for the rule of law by establishing an unequal application of the law, resulting in some being more burdened by Obamacare than others. It favors those wealthy and powerful enough to work their way through the complicated provisions of this overreaching boondoggle, opening the door for completely unacceptable corruption and favoritism. The waivers also serve a political purpose of allowing the Obama Administration to placate their political allies and wealthy corporations for a few years until the full law comes into effect, helping to mute criticism of Obamacare and keep its bad provisions from being fully realized in the mean time; they are betting on the belief that Americans would notice if tens of thousands of McDonalds employees suddenly lose their health plans, but not if a dozen people at the mom and pop place down the street do.

Some in Congress are doing what they can to rein in the Obama Administration and reinforce the rule of law. Congressman Michael Rogers (R-MI) and eighty others are sponsoring House Resolution 984: Health Care Waiver Fairness Act of 2011, which requires the administration to establish an official waiver process with clear, particular guidelines. The summary of the proposed law provided by is:

"Health Care Waiver Fairness Act of 2011 - Amends the Patient Protection and Affordable Care Act (PPACA) to require the Secretary of Health and Human Services (HHS), the Secretary of Labor, and the Secretary of Treasury to establish waiver processes under which the administrator of a health plan, an employer, an individual, or other entity may seek to waive the application of a health insurance coverage requirement under PPACA. Sets forth PPACA requirements that may be waived, including those related to minimum essential coverage and employers offering health care coverage to employees. Establishes requirements for the waiver process, including requiring submission of a statement describing how the imposition of the PPACA requirement would result in a significant decrease in access to coverage or a significant increase in premiums or other costs for such plan, employer, individual, or entity. Deems to be approved any waiver including such a statement. Requires the Secretary of HHS to conduct a public awareness campaign of the waiver process with funds made available for the Prevention and Public Health Fund."

Congress would do well to pass the Health Care Waiver Fairness Act in order to allow everyone who stands to suffer from Obamacare's implementation to have the same opportunities as the labor bosses and the Wall Street executives to receive a waiver. While it is important to take the seeking and giving of waivers as further proof that Obamacare is bad policy and thus should be repealed or radically amended, there is an even more important thing to protect here: respect for the rule of law.

We must remember that laws, not men, rule us. Before the law, with Justice deaf to our pleas and blind to our station in life, we are equal. When we allow men to become the arbitrators of their own personal form of law, politics and corruption overcome unprotected Justice and we find ourselves in a land of inequality and uncertainty. In engaging in this corrupt waiver practice, the architects and enforcers of this far-reaching health care law express contempt both for the power of Congress and the rule of law, and insult the common decency of our political order. Without the rule of law, we are without the protections of liberty and justice. It is shameful, and it must stop.

Categories > Health Care

Discussions - 4 Comments

But there is already a clear process for getting waivers!

HHS does not "arbitrarily" grant waivers, nor are these waivers automatic.

The HHS is governed by the APA. The APA is more or less a bill of rights for anyone who deals with government. The HHS has procedures that it has outlined in the CFR's which at the time they are proposed are open for notice and comment.

I am not 100% sure that getting a waiver would really be smart for a small business or farmer. You are still going to have legal fees.

"Deems to be approved any waiver including such a statement."

Now that is Arbitrary and Capricious!

Elitism is the theme of Liberals... Do as I say, not as I do. Remember, Obamacare does not affect congress or the president.

"Deems to be approved any waiver including such a statement."
Now that's hilarious. HHS already does, and now has to provide this specific documented process, but this law prescribes that regardless of what it is, if someone simply applies for a waiver, they get it? Try again. The point of the law is consumer protections... companies are applying for hardship exceptions, basically. Well, they need to actually demonstrate the hardship. It should in no way be automatic.

Right. The waiver process is not a rubber-stamp affair. A whopping six percent of waiver applications have been disapproved.

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