While much of the talk about the unconstitutionality of ObamaCare has been focused on the act itself, Philip Hamburger has written a very intriguing piece that suggests that may not be all about this healthcare travesty that is unconstitutional:

The Department of Health and Human Services has granted 733 waivers from one of the statute's key requirements. The recipients of the waivers include insurers such as Oxford Health Insurance, labor organizations such as the Service Employees International Union, and employers such as PepsiCo. This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.

 

More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed ? and therefore is binding ? how can the executive branch relieve some Americans of their obligation to obey it?

 

The dangers of inequity are obvious. Will only corporations and unions get waivers, or can individuals also get them? For example, if a family physician feels financial pressure under the health-care law to fire one of his employees, will he get a waiver to avoid adding to unemployment?  Indeed, can even a small corporation get a waiver? Small businesses provide most new jobs, but the answer is obvious: Waivers are mostly, if not entirely, for politically significant businesses and unions that get the special attention of HHS or the White House. The rest of us must obey the laws.

Hamburger goes on to explain the long history of kings and autocrats who issued "waivers" to those in society they preferred, and the consternation and resistance such picking of favorites initiated.

As a result, British Parliament began restricting the power of the executive to behave in such ways.  The American experiment followed the British example with even greater restraints placed upon the executive's authority to grant "dispensation."  As Hamburger explains:

Even more strikingly, no American constitution, state or federal, allowed dispensation, let alone its delegation. Nor should this be a surprise. The power to dispense with the laws had no place in a constitution that divided the active power of government into executive and legislative powers. The dispensing power was not a power to make laws, nor even a power to repeal laws, but rather a power to relieve individuals of their obligation under a law that remained in effect. It thus was a power exercised not through and under the law, but above it.

 

Of course, after a violation of a statute, the executive could refrain from prosecuting the offender or even pardon him. Until the legislature changed the law, however, neither the legislature nor the executive could simply tell a favored person that he was not bound by it.  Waivers can be used for good purposes. But since the time of Matthew Paris, they 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. Like old English kings, the current administration is claiming such a power to decide that some people do not have to follow the law. This is dangerous, above the law, and unauthorized by the Constitution.

As upsetting as it may be to some to admit it, that last sentence is coming to define the Obama presidency.