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Posts Tagged ‘waiver’
August 9th, 2013 at 3:20 pm
All Animals Are Equal, but Congressional Animals Are More Equal than Others
Posted by Timothy Lee Print

We all recall former House Speaker Nancy Pelosi’s infamous instruction that Congress should pass ObamaCare so that we can all find out what’s in it.  Well, it turns out that Congress itself didn’t like what it found, and desperately worked to secure a free pass from the ObamaCare mandates to which other Americans are bound.  Like in George Orwell’s “Animal Farm,” some are apparently more equal than others despite the law’s statutory language that Congress and its staffers would be subject to the law that they passed.  As our old compatriot Quin Hillyer notes, that not only violates the law and all concepts of fairness, it also contravenes an important portion of the Contract with America:

For decades, Congress had exempted itself in myriad ways from laws or rules applying to the rest of the country.  The Contract vowed to change that – and on the very first day of the new Congress in 1995, it did.  Here was the language:  “First, require all laws that apply to the rest of the country also apply equally to the Congress.”  How simple.  How straightforward.  And how important!  And for the next 18½ years, until this past week – and despite frequent rumors to the contrary – that’s exactly what Congress did.  For all its faults, Congress actually abided by the Contract’s rule.  But now that’s gone. Now, via a ruling worked out between certain congressional leaders and the White House, federal subsidies for health insurance – of a sort available to no private-sector workers – will continue to be provided for congressmen and their staffs.  This sort of special exemption for government workers is not a merely symbolic annoyance; instead, it feeds a perception that soon becomes an attitude that soon makes itself manifest in various actions.  The perception is that government workers are above the law; the attitude that can grow among the federal workforce is that those workers are our masters rather than our servants; and the actions that flow from that attitude can include many abuses, small and large, of privacy or liberty.”

An important point, and one that Americans should raise as Congressional leaders head home for August recess and citizen townhall meetings.

May 2nd, 2013 at 2:30 pm
New Version of Secret Immigration Bill has 999 Waivers

Not only does a newly released version of the Gang of Eight’s immigration reform bill expand (from 844 to 867 pages) its previous draft, it also “contains 999 references to waivers, exemptions and political discretion,” according to an analysis by Neil Munro of the Daily Caller.

That means the Gang’s new bill has more exemptions per page than ObamaCare; 1.14 per page to 0.78 by the Daily Caller’s count.

As a reminder, there are now two secretly negotiated versions of comprehensive immigration reform circulating on Capitol Hill, and neither of them includes one word of input from the public, issue experts, or other Members of Congress.

If the U.S. Senate under Majority Leader Harry Reid (D-NV) were following a transparent process it would be expected that the introduced version of the Gang’s immigration bill would change and perhaps get bigger after a few weeks kicking around in committee as Senators and their supporters read and tweaked it.

But the fact that there has been no opportunity for amendments to the Gang’s original bill and barely enough time for opponents to read and understand it – and consequently, find out what’s wrong with it – the arrival of this secretly amended version means that non-Gang members are back to square one trying to figure out what the bill actually says and what it actually does.

With 999 exemptions, waivers and grants of discretion to sort through, it would take the better part of a month to diagram how the law will work when implemented, and ferret out all its unintended consequences.

As it is, the full Senate is expected to start voting on the new version as early as next week when Congress returns from its current recess.

This is government by ambush, and conservatives need to kill both the bill and the perverted process that makes it possible.

July 13th, 2012 at 1:56 pm
Obama Repeals Welfare Reform By Administrative Fiat

The Heritage Foundation picked up on a little noticed administrative policy change announced yesterday by the Department of Health and Human Services that removes the work requirements in the landmark 1996 welfare reform legislation.

Here’s how Heritage characterizes the Obama HHS’s new policy:

[On Thursday, July 13, 2012] the Obama Administration issued a new directive stating that the traditional TANF work requirements can be waived or overridden by a legal device called the section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).

Section 1115 states that “the Secretary may waive compliance with any of the requirements” of specified parts of various laws. But this is not an open-ended authority: Any provision of law that can be waived under section 1115 must be listed in section 1115 itself. The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, are deliberately not listed in section 1115; they are not waiveable.

In establishing TANF, Congress deliberately exempted or shielded nearly all of the TANF program from the section 1115 waiver authority. They did not want the law to be rewritten at the whim of Health and Human Services (HHS) bureaucrats. Of the roughly 35 sections of the TANF law, only one is listed as waiveable under section 1115. This is section 402.

Section 402 describes state plans—reports that state governments must file to HHS describing the actions they will undertake to comply with the many requirements established in the other sections of the TANF law. The authority to waive section 402 provides the option to waive state reporting requirements only, not to overturn the core requirements of the TANF program contained in the other sections of the TANF law.

The new Obama dictate asserts that because the work requirements, established in section 407, are mentioned as an item that state governments must report about in section 402, all the work requirements can be waived. This removes the core of the TANF program; TANF becomes a blank slate that HHS bureaucrats and liberal state bureaucrats can rewrite at will.

This newly created waiver authority builds on the unprecedented work of the Education Department waiving No Child Left Behind requirements, and HHS’s previous ObamaCare waivers.

It also reaffirms the Obama Administration’s commitment to its “We Can’t Wait” vision of governance, which says that if Congress won’t cooperate in passing liberal policies, then the President and his bureaucratic administrators will rewrite the law without them.

The administrative state remains constitutionally suspect because the Supreme Court has never explained how bureaucracies that exercise quasi-judicial, executive and legislative powers align with the separation-of-powers principle enshrined in our Constitution.  (Hint: They don’t.)

But because the Supreme Court has chosen to allow an unconstitutional barnacle to be grafted onto our ship of state, we now have liberal policy wonks passing, enforcing, and adjudicating laws through waiver requirements that are completely beyond the reach of democratic accountability.  (Sound familiar?)

The Obama Administration’s use of waivers to replace existing law with its own policies is bringing us to a tipping point.  If taken to its logical conclusion, Congress need not pass another law so long as the Executive can waive-and-replace its contents at will.

Like so many other issues this election cycle, Mitt Romney and others need to stress the importance of the Obama Administration’s lawless disregard for our constitutional system.  Administrative fiat cannot be accepted as a valid substitute for legislative deliberation.  If it is, then America will in every sense be a nation of men and not laws.

July 9th, 2012 at 5:45 pm
Would a President Romney Waive ObamaCare Rules?

Last Friday, the Obama Administration announced that Wisconsin and Washington joined 24 other states as recipients of No Child Left Behind waivers.

The Department of Education claims that Congress’ repeated failure to reauthorize NCLB since it became due in 2007 empowers it to exempt petitioning states from certain requirements in exchange for accepting new rules and policies dictated by the White House.

This links to a chart from Governing.com identifying each state’s waiver status.

Writing in an email commentary about the waivers, Lindsey Burke of the Heritage Foundation summarizes President Barack Obama’s justification of the waiver system as “necessary to provide relief to states that fear drowning in a cascade of sanctions that are forthcoming in 2014,” such as 100 percent of students being proficient in reading and math.

While I agree with Burke that states “should demand genuine relief from NCLB through congressionally approved options that fundamentally reduce federal intervention in education,” her summary of Obama’s justification for waivers got me thinking.

If Mitt Romney gets elected president with less than full (or consistent) control of Congress and can’t repeal ObamaCare, would he resort to granting waivers from its penalties “to provide relief to” individuals “that fear drowning in a cascade of sanctions”?

I certainly hope so.

David Harsanyi points out:

According to the Congressional Budget Office—which can only calculate the narrow data it’s given—the non-tax penalty on Obamacare’s non-mandate will affect 4 million people by the year 2016. Of those paying this ‘untax,’ 75 percent will make less than $120,000—breaking the president’s promise that those making under $250,000 would not have to pay a “penny” more in taxes, which, presumably, includes “shared responsibility payments.”

Anticipating Romney’s inauguration, I’ll go ahead and get in line to ask, “Mr. President, can I have a lifetime waiver from my ‘shared responsibility payment?’”

I think there’s a precedent…

February 10th, 2012 at 4:52 pm
Cato on Contraception Mandate: ‘We Should All be Exempt’

As a companion must-read article to Tim’s column on the ObamaCare birth control mandate, John Cochrane of Cato explains why President Barack Obama’s proposed compromise to exempt church-related institutions misses the point:

Our nation is divided on social issues. The natural compromise is simple: Birth control, abortion and other contentious practices are permitted. But those who object don’t have to pay for them. The federal takeover of medicine prevents us from reaching these natural compromises and needlessly divides our society.

The critics fell for a trap. By focusing on an exemption for church-related institutions, critics effectively admit that it is right for the rest of us to be subjected to this sort of mandate. They accept the horribly misnamed Patient Protection and Affordable Care Act, and they resign themselves to chipping away at its edges. No, we should throw it out, and fix the terrible distortions in the health-insurance and health-care markets.

Sure, churches should be exempt. We should all be exempt.

October 7th, 2011 at 2:40 pm
Time to “Occupy” the White House

With the unwashed masses “occupying” Wall Street and other financial centers throughout the country, Community-Organizer-in-Chief Barack Obama is trying to convince the protesters of crony capitalism that their grievance is really his.  From today’s Wall Street Journal:

Asked about the demonstrations that have spread to cities across the U.S., Mr. Obama empathized with protesters’ frustrations without embracing the movement: “The American people understand that not everybody has been following the rules; that Wall Street is an example of that.”

Haven’t been following the rules? How’s this for a list of people not following the rules:

  • Energy Secretary Steven Chu rubber stamps another taxpayer subsidy to Solyndra after the company defaulted on a $535 million loan (the company couldn’t get sufficient venture capital funding but did grease the skids to get taxpayer money thanks to an Obama fundraiser – who was also an investor – pulling strings)
  • Attorney General Eric Holder lies to Congress about allowing a criminally stupid ‘gun-walking’ program at ATF to continue that sends 2,000 guns to Mexican drug cartels, killing a Border Patrol Agent
  • Education Secretary Arne Duncan violates the No Child Left Behind law by unilaterally issuing waivers that require recipients to accept White House dictated regulations that cannot get through Congress – an unheard of abuse of the waiver process

I could go on, but I think the point is made.  The American people are viscerally aware of a politically connected elite waging war on the rule of law.  But it’s the Tea Party, not those squatting outside America’s nodes of commerce, that has identified the biggest threat to prosperity.  It’s time to occupy the White House and the Cabinet with people who not only respect the law, but also know how to grow the economy in a real, free market fashion.

August 15th, 2011 at 5:27 pm
Obama Waives Legislative Process with New NCLB Deal

Kudos to the Heritage Foundation for drawing attention to this analysis from the Brookings Institution about President Barack Obama’s unprecedented use of the waiver process to bypass Congress and rewrite education law:

It is one thing for an administration to grant waivers to states to respond to unrealistic conditions on the ground or to allow experimentation and innovation. Similar waiver authority has been used to advance welfare and Medicaid reform going back to the Reagan administration, and to allow a few districts and states to experiment at the margins of NCLB in the Bush administration. It is quite another thing to grant state waivers conditional on compliance with a particular reform agenda that is dramatically different from existing law. The NCLB waiver authority does not grant the secretary of education the right to impose any conditions he considers appropriate on states seeking waivers, nor is there any history of such a wholesale executive branch rewrite of federal law through use of the waiver authority.

February 1st, 2011 at 2:19 pm
61% Say All Businesses Should Get ObamaCare Waivers

How great a law could ObamaCare be if companies like McDonald’s need a compliance waiver?  The surge in waivers granted by Department of Health and Human Services (HHS) Secretary Kathleen Sebelius is fast-approaching 800, or a little more than two a day since the law went into effect.  At some point, exceptional cases swallow the rule.  This seems to be the thinking behind today’s Rasmussen Reports poll:

Sixty-one percent (61%), in fact, think that if selected companies receive an exemption from certain aspects of the health care law, all companies should be treated the same way. Twenty percent (20%) now disagree and say all companies should not be given that exemption, but 19% more are undecided. These findings are comparable to the previous survey.

Where’s the fairness in granting waivers only to a few?  Aren’t we all in this socialized health care pool together?  Or are some companies too big to comply?  If liberals had the courage of their convictions, they’d implement their health care takeover immediately so people would know exactly what it does.  Since the law and its proponents would go down in flames in that scenario, instead we’ll continue to see HHS boil the economy slowly, hoping “only” 61% of the people notice.

January 27th, 2011 at 7:48 pm
HHS Waiver-gate Adds Another 500 Exemptions

Perhaps the Department of Health and Human Services (HHS) should get credit for making the road to serfdom a little easier to travel.  Beset by criticisms that ObamaCare grants HHS Secretary Kathleen Sebelius “dictatorship” status with powers including on whom to bestow compliance waivers, HHS confirmed it handed out 500 new get-out-jail-free cards.

The purpose of the year-long waivers is to provide a compliance-free bridge for employers who would otherwise opt to pay the penalty for canceling out-of-compliance insurance plans.  That bridge only extends to 2014.

Alex Cortes at The Daily Caller notes that the waivers (averaging about two a day so far for 729 total) will only be granted until 2014 when ObamaCare’s state-run insurance exchanges come online.  Then, companies that stop offering insurance will pay the fine, but their employees will be able (i.e. forced) to use the exchanges or be fined themselves for ignoring the individual mandate.

Until then, private sector employers and employees must go hat-in-hand begging for a waiver from Comrade Sebelius.  Don’t worry, says a HHS spokesman, the number of waiver requests denied is “more than a handful, but not a big number.”  How benevolent.