Obamacare Waivers vs the Rule of Law

Just as Nancy Pelosi predicted, only after Obamacare was passed are we learning what's in it.  Hardly a week goes by without someone revealing some new shocker of unanticipated costs or onerous regulations deliberately dumped on the American people.

The problem of unanticipated cost is so great that President Obama has been forced to issue waivers from his signature legislation, covering Fortune 500 companies, his friends the unions, and most recently the entire state of Maine.

It's easy to complain about the obvious corruption here - Mr. Obama is willing to help out those who have the money and clout to make him pay attention, while leaving small businesses to suffer burdens the well-connected evade.

All by itself that would be worrying; but there's an even deeper problem: The concept of a waiver for a law eliminates the principle of the rule of law.  To the extent that bureaucrats and politicians can issue waivers at their discretion, we are not living under a law-abiding system but rather a tyranny, by definition.

Not anymore.

Waivers, Kings, and Tyrants

What is a waiver actually?  It's an exemption, given to a specific person or organization, from having to obey a particular law.  Or put another way, it's official permission to break the law.

When the Watergate burglars broke into DNC headquarters, they were breaking several laws - burglary, B&E, and so on.  Why didn't Nixon simply issue his Plumbers a waiver from those laws and avoid the whole scandal?

Because he had not the power to do that.  The Constitution requires of the President that:

“… he shall take Care that the Laws be faithfully executed…”

Obviously, giving favored folks a free pass isn't faithfully executing the laws, much less providing the "equal protection" required in the 14th Amendment.

Apparently a provision for states to seek waivers was buried in the bowels of the Obamacare bill itself so that isn't directly illegal - though it's being debated.  Certainly, nobody's yet found any legal justification for waivers other than to states and HHS isn't explaining; so there may be yet another major Constitutional problem with Obamacare in addition to the ones already well known.

That's not the point.  Even if the law explicitly gave a political authority the power to issue exemptions, it's still corrosively wrong.

Columbia Law Professor Philip Hamburger uses history to explain why:

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...

The bottom line?

Since the time of Matthew Paris, [waivers] have been recognized as a power above the law — a power used by government to co-opt powerful constituencies by freeing them from the law.  [emphasis added]

We've previously explored the horrendous corruption that results from overintrusive zoning boards having the power to prevent people from building on their own private property and also the ability to exempt some from the oppressive rules.  Yes, the exemptions do occasional good things by allowing development (and employment) that otherwise wouldn't be permitted - but how dare the government obstruct private construction and enterprise in the first place?  How dare they exempt their favored friends from laws you and I have to follow?

Obamacare clearly suffers under the same delusion of grandeur: an oppressive, destructive, unworkable system being crammed down the American people's throats, except for a favored few whom King Obama has regally granted a waiver.  If the king can get you out of the law then "rule of law" has no meaning, and that's where we find ourselves today.

This is unconstitutional, evil, and wrong - in some ways, even more so than Obamacare itself.  All must suffer under the burden of the law equally together, or none must; there is no middle ground.

Otherwise the "law" is a sham, and the concept of equality under the law is a dead letter from the past.  But isn't that what our elites what?  Freedom not to follow the laws they force on the rest of us?