Hamburger on Waivers, Part II

Columbia Law’s Philip Hamburger has a second NRO essay exploring the constitutional implications of granting the executive branch the discretionary authority to issue waviers under the federal health care reform law.

Undoubtedly, waivers or dispensations can be used for good purposes — primarily, for relief from bad laws. Yet the need for relief from a burdensome law does not mean that all forms of relief are desirable. The question therefore is not merely whether a waived law is regrettable, but whether waivers are an appropriate remedy. For hundreds of years, it has been clear that waivers or dispensations were dangerous, and this has not changed. . . .

waivers are a threat to government by and under law. When the government grants a waiver or dispensation, it does not act through law, and yet it purports to liberate the recipient from the obligation of law. In other words, when the government grants a waiver, it acts above the law to permit others to act above the law, thus making waivers doubly lawless.

As I explained here, I have some sympathies with Prof. Hamburger’s argument, and agree that the historical suspicion of such authority was well-grounded. The discretionary authority to grant exemptions from otherwise applicable legal rules goes well beyond the discretionary control over enforcement — prosecutorial discretion — long enjoyed by the executive branch.  But given the extent to which legislatures may delegate legislative-type authority to government agencies — authority not just to make discretionary enforcement decisions, but also to articulate the contours of rules and regulatory schemes — it is hard for me to see why Congress could not delegate the authority to waive specific legal requirements once a given set of requirements were satisfied.  In response, Professor Hamburger writes:

This justification, however, confuses the delegation of the dispensing power with the delegation of legislative power. It is said that because Congress has the legislative power, it can delegate lawmaking. But not even Congress has the power to waive or dispense with the law. To be sure, Congress can alter or repeal the law, but while it leaves the law in place, the law remains binding, and Congress cannot spare persons from compliance. Accordingly, Congress cannot delegate such a power.

I agree that the dispensing power is different from the legislative power, in principle.  In practice, however, I think this rule breaks down given the breadth of delegation that occurs.  Congress routinely gives agencies the authority to adopt “reasonable” rules or limitations, complete with the authority to define exempt classes from given regulatory requirements.  If such broad delegations are acceptable — and under current precedent, they surely are — then why cannot Congress delegate the authority to make discretionary judgments about whether the application of a given rule serves the underlying legislative purpose in a given circumstance.  Such discretion should not be unbounded, and I would support applying the “intelligible principle” standard with some force in such contexts, but I don’t think it is so easy to draw the constitutional line Prof. Hamburger suggests.

I would also like to point readers to this formulation offered by Professor Calvin Massey at The Faculty Lounge:

in some circumstances the dispensing power might amount to an impermissible delegation of legislative power.  The delegation doctrine has been on the constitutional ashheap for some time, but it retains some theoretical vitality.  The doctrinal answer is that so long as Congress gives the President an ascertainable standard by which to exercise  discretion, there has been no unlawful delegation of legislative power to the executive.  If the Secretary grants or denies waivers in accord with an ascertainable standard, there is no improper delegation, but if it turns out that, as applied, the waivers are dispensed to those with political clout and denied to similarly situated but less well-connected applicants, the ascertainable standard becomes the grin of the Cheshire cat.

Given current doctrine on delegation, I believe the question should be whether a given statute — whether the PPACA or any other of the many statutes with waiver provisions — contains an “ascertainable standard” that provides a sufficient check against arbitrary and politically motivated wavier decisions, and whether the waiver process is sufficiently transparent and regularized to further ensure some degree of uniformity and non-arbitrary decision-making.  When I’ve proposed waiver provisions in my own writing, I’ve suggested waivers should be subject to notice-and-comment and the decisions should be subject to judicial review.  This degree of process for waivers has never been required, but I believe it would address many of the serious concerns Professor Hamburger raises.