The Continuing Injustice of Obamacare Waivers

It may be hard to keep track of with the round-the-clock news cycle, but the continuing injustice of waivers to the Patient Protection and Affordable Care Act deserves careful scrutiny by the American citizenry.

The list of granted waivers now stands at 733.  A glance reveals that much of this favored class is made up of the law's biggest supporters: unions and health care providers.  A more extensive analysis of the list would be a waste of time; the salient point is that it is a manifestation of privilege -- i.e., Americans are unequal under Obamacare.  While some are given exemptions to the new law, some will be punished for failure to adhere to it.

Article 2 of the U.S. Constitution prohibits the Congress from enacting a bill of attainder -- a law which pronounces guilt and/or punishment upon an individual.  Under the American system, the legislature should pass laws over the whole of the nation, and the judiciary should decide individual cases of innocence or guilt.  In Federalist No. 44, James Madison explains this bulwark for equality under the law:

The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.

The architect of the Constitution knew that legislative interference into the realm of the individual would be a dangerous and unpredictable power.  The authors of the Federalist Papers considered the legislative the branch most likely to become too strong, the judiciary the most likely to have its prerogatives infringed upon.  Of course, a bill of attainder generally refers to a revoking of rights by the legislature.  The ObamaCare waivers are a granting of privileges by an organ of the executive (Health and Human Services) which was approved by Congress.  Thus, it is questionable as to whether the waivers are absolutely banned under the Constitution.  Nonetheless, Madison later remarked in Federalist 44 that the ban on titles of nobility "needs no comment."  At least in the spirit of the document, citizens should be equal under the law.

For many readers, the phrase "rule of law" may be close at hand.  Frederick Hayek elucidates this concept in chapter six of his polemic against central planning, The Road to Serfdom.  Hayek's language is somewhat less abstract than Madison's; according to Hayek, the state should make the signposts on roads and then allow people to drive where they please, rather than actually command people where to drive.  Without a general universality of laws, the state is in a position to choose winners and losers:

In the end somebody's views will have to decide whose interests are more important; and these views must become part of the law of the land, a new distinction of rank which the coercive apparatus of government imposes upon the people1.

Although Madison and Hayek are men worthy of study, our thinking should not begin and end with them.  In a series of famous Ally Bank commercials, a well-dressed banker mistreats children, with the punch-line of every commercial being that "even kids know it's wrong to ___."  A similar sense of intuition can be applied to the ObamaCare waiver situation.  Even kids know it's wrong to apply different rules to different people.  At best, HHS's ad hoc system is unwieldy and prone to uneven enforcement of the law.  At worst, it is a vehicle for privilege.

The status of efforts to repeal ObamaCare or invalidate the law through the courts is unresolved.  The court cases could go either way, and it is a stretch to assume that Republicans will hold a filibuster-proof majority in the Senate after 2012.  If the electorate does not grant the administration another term, the new Republican president should act immediately to correct the prevailing inequality in the enforcement of Obama's signature law.

The current process for acquiring exemptions (located on the same page as the list itself) requires that a state sponsor the exemption of specific health care plans which are unable to meet the minimum coverage requirement.  These exemptions expire in 2014.  Moreover, the burden is on the requesting state and plan to convince HHS that they merit waiver.  This ability of the HHS secretary to choose winners and losers is where the ability to bestow privilege resides.

Section 1411 of the Patient Protection and Affordable Care Act grants the HHS Secretary almost complete latitude in the determination of whether or not an individual is entitled to an exemption.  A future Republican president must protect the rule of law for all Americans, and not just special classes, as is currently the case.  He or she must appoint a secretary to HHS whose "laser-like focus" is to grant all Americans an exemption from this monstrous law.  In this way, Americans' freedom of choice will be restored.

Such a tactic would surely be called names and be the object of unprecedented vitriol from Democrats.  In a bit of irony, it would probably be said to be a way for Republicans to flout the rule of law.  In fact, allowing for indiscriminate and indefinite exemptions will serve to restore the rule of law, and will amount to a de facto repeal of ObamaCare.

1Frederick Hayek, The Road to Serfdom (London: The University of Chicago Press, 2007 [1944]), 113.

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