Philip Hamburger: Are Health-Care Waivers Unconstitutional?
[Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.]
The constitutional dispute over the health-care law has thus far centered on the lawfulness of the statute itself — most dramatically when, last week in Florida, a federal judge held the act to be void. Waiting in the wings, however, is another constitutional question, one concerning not the statute, but waivers from 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. Technically, these grants relied on what were called “non obstante clauses” — clauses in which the king specified that, notwithstanding a particular law, the recipient of the grant could do as he pleased. Supplementing this dispensing power was the suspending power. Whereas a dispensation waived compliance with a statute for a particular individual or corporation, a suspension waived compliance for everyone.
The underlying justification was that the king had absolute power — a power above the law — and this caused consternation. Men had speculated about God’s power to perform miracles or otherwise act above His own laws, and it was troubling enough that the pope, in imitation of God, excused individuals from canon law; but it was even more immediately worrisome that the king now was dispensing with statutes and sometimes suspending them, for this suggested that he had power above the law of the land. Recognizing the danger, the chronicler Matthew Paris in 1251 lamented the introduction of dispensing grants in England. These clauses, he complained, amounted to saying, “Notwithstanding any old liberty, the matter shall proceed.” This sort of provision allegedly provoked a judge — Roger de Thurkeby — to sigh, “Alas! Alas! . . . The civil court is now tainted by the example of the ecclesiastical one, and by the sulphurous spring the whole river is poisoned.”...
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The constitutional dispute over the health-care law has thus far centered on the lawfulness of the statute itself — most dramatically when, last week in Florida, a federal judge held the act to be void. Waiting in the wings, however, is another constitutional question, one concerning not the statute, but waivers from 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. Technically, these grants relied on what were called “non obstante clauses” — clauses in which the king specified that, notwithstanding a particular law, the recipient of the grant could do as he pleased. Supplementing this dispensing power was the suspending power. Whereas a dispensation waived compliance with a statute for a particular individual or corporation, a suspension waived compliance for everyone.
The underlying justification was that the king had absolute power — a power above the law — and this caused consternation. Men had speculated about God’s power to perform miracles or otherwise act above His own laws, and it was troubling enough that the pope, in imitation of God, excused individuals from canon law; but it was even more immediately worrisome that the king now was dispensing with statutes and sometimes suspending them, for this suggested that he had power above the law of the land. Recognizing the danger, the chronicler Matthew Paris in 1251 lamented the introduction of dispensing grants in England. These clauses, he complained, amounted to saying, “Notwithstanding any old liberty, the matter shall proceed.” This sort of provision allegedly provoked a judge — Roger de Thurkeby — to sigh, “Alas! Alas! . . . The civil court is now tainted by the example of the ecclesiastical one, and by the sulphurous spring the whole river is poisoned.”...