In a recent piece in National Affairs, I wrote of the serious threat that government by waiver has to the rule of law. The pattern first surfaced in connection with the requirements that the Patient Protection and Affordable Care Act (aka ObamaCare) imposed on those employers who ran so-called Med-Mini plans, which provide modest benefits for low-income workers, but which are expensive to administer because of the high rate of turnover among low income employees.
The choice in these cases was stark. Such employers as McDonald’s could escape the clutches of the law by abandoning all health care coverage for these employees, at a time when the national government had nothing to put in its place. Or it could turn a blind eye to the regulation and allow the plans to continue for a fixed period, after which it could reevaluate the situation.
HHS chose the last course, which is the voice of prudence. But it is important to remember that this reversal does not count as a partial repeal of the statute. The decision is made administratively. It can be subject to government conditions. It could last only for a limited time. It need not be granted to all parties, even if they are in the same position—whatever that might mean in these cases. All in all, it is one thing to blunt the bad effects of an unrealistic statute. It is another thing to be happy with the extra dollop of discretion that it confers on government officials.
The setting with respect to No Child Left Behind is yet another variation on the same theme. The initial statutory program sets idealistic goals that everyone on the ground knows to be unattainable. Any statute that talks about “no child” being anything has to be a form of pompous overstatement in light of the tens of millions of children in our educational system, at least one of whom is sure to fall behind.
The posturing that drives the adoption of the passage makes it impossible, of course, just to repeal it. After all, who is in favor of every child being left behind. So as with the government waivers in health care, we see the compromise. Keep the grand ambitions, and then grant ad hoc waivers on the ground, given that the alternative of shuttering countless schools only makes matters worse.
Yet this entire approach of government by waiver should be greeted not only with relief, but also with despair. The only reason we have to worry about the waivers is that we have committed ourselves to legislative programs that are beyond our grasp. And we do that because we have too much faith in the ability of the public sector to perform miracles when it is so beset with difficulties that it can hardly keep its head above water. A bit of moderation is in order. Fewer impossible mandates means fewer waivers, which could mean a welcome retrenchment in the kind of overambitious public initiatives that risk major failure for what will turn out in the end to be illusory gains.
– Richard A. Epstein
This article originally appeared on Advancing a Free Society.
