The only major litigation relating specifically to the Obamacare waivers is the Freedom of Information Act (FOIA) suit filed by Crossroads Grassroots Policy Strategies pursuant to the repeated failure of HHS to provide information about its processing of waiver applications. This lawsuit "seeks judicial enforcement of a FOIA request for 'any and all memoranda, guidance, directives, instructions and other documents… relating to the criteria to be applied by HHS in deciding whether to grant or deny applications for waiver of the annual limit requirements' ordered by the Obamacare law."Rather, Catron notes:
This is all well and good, but the waiver problem deserves far more legal attention than does a mere violation of FOIA. Indeed, it is in some ways a greater affront to our basic liberties than Obamacare's egregious individual mandate. The latter is deservedly the primary target of myriad lawsuits, one of which is serious enough to have been scheduled by the justices of the Supreme Court for an April 15 discussion concerning whether they should hear the case prior to appellate review. But Obamacare and its mandate, as outrageous as they are, were at least passed by a duly elected Congress and signed into law according the general procedure set down by the framers. Even if the individual mandate is eventually found to be unconstitutional, it came into being pursuant to a (more or less) legitimate legislative process.
But the waivers have no such claim to legitimacy.
Obamacare does not contain any provision allowing the President, or any other member of the executive branch, to issue special dispensations at his or her pleasure.(Read the full text of "King Barack's Waivers".)
...Yet King Barack I, as errant conservative Andrew Sullivan recently dubbed him, continues to issue special dispensations through his retainers at HHS. The total has now gone well above 1,100, and nearly half of the latest batch of 128 waivers went to various unions that support the President and his party with manpower and money. This, to quote Professor Hamburger again, "raises questions about whether we live under a government of laws… how can the executive branch relieve some Americans of their obligation to obey it?"
At the Volokh Conspiracy, there's a related series of posts such as, "Hamburger on Waivers".
The 3/19/2011 New York Times covers this issue at "Health Law Waivers Draw Kudos, and Criticism". One quote caught my eye:
...[W]aivers have gone to entities as diverse as the Waffle House and Ruby Tuesday, health plans run by Aetna and Cigna, and labor unions representing Teamsters, electrical workers, plumbers, carpenters and food and commercial workers.Such selective enforcement (or exemptions) pushes us even further from the rule of law, and towards the rule of men.
Administration officials said the waivers showed a pragmatic, flexible approach to carrying out the law. Without the waivers, said Kathleen Sebelius, the secretary of health and human services, many employers would have increased premiums, and some would have dropped coverage altogether.
Edmund F. Haislmaier, a health policy expert at the conservative Heritage Foundation, said the waivers "result in unequal application of the law and create a temptation to engage in political favoritism."
Republicans like Representative Darrell Issa of California said that in granting waivers, the administration had favored political allies, including labor unions.
The end result will be open tyranny.
