Waivers to be weighed by voters, not judges

Neil Munro White House Correspondent
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Judges likely won’t consider the torrent of 1,040 health-insurance waivers for well-connected unions and businesses as evidence that the far-reaching Obamacare law is unconstitutionally arbitrary and unpredictable, say lawyers.

But the expanding criticism of the waivers by Republicans, including Wyoming Republican Sen. John Barrasso, may yield an indirect political benefit. That’s because the waivers may further weaken public support for the expansive law, and so bolster the willingness of Supreme Court judges to strike down the law as an unconstitutional breach of federal-state powers, said Ilya Somin, a law professor at George Mason University.

Judges normally are willing to accept almost any federal explanation for limited waivers of laws that don’t include criminal sanctions, said Somin. A low-bar “rational test” for exemptions has been used in judicial reviews of many other laws, and likely will be used if the health-sector overhaul’s many critics claim the proliferating back-room waivers render the law unconstitutionally vague, he said.

“The existence of so many waivers granted in so discretionary a way is troubling but it is unlikely the courts will invalidate the law” on those grounds, Somin said.

Agency officials say the number of waivers declined from 500 in December to 126 in February, and that many waivers are being granted to employers that offer “mini-med” plans that set a low annual cap to payouts. Under the health-sector law, those low-cost plans will be made illegal by 2014.

Many waivers have been granted to unions and city governments.

The waivers show the administration is simultaneously demonstrating favoritism towards allies and bullying of potential private-sector critics, Barrasso told The Daily Caller. The groups that are favored with one-year exemptions are also told they won’t get another unless they keep quiet about the deal, he said. “Every one of these waivers should be called into question,” he added.

More broadly, the waivers are improper because “we have all the folks who lobbied to get the law passed, [who] are now lobbying to get exemptions because they don’t want to live under the law,” he said.

Popular opposition to the law can stiffen the spine of judges cautious about overturning laws, said Somin. “If that [focus on the exemptions] helps make the law keep its unpopularity, it could make a difference” in the judges’ decision, he said.

Voters “are opposed to the exemptions,” Barrasso said, adding that he’s been pushing his message via TV shows, editorials and in lunch meetings with the GOP caucus. But pending a final rejection of the law in Congress or the courts, Barrasso says he is willing to endorse a new type of waiver. “I want every American to have an exemption to get out of this law,” he said.