The PJ Tatler

Great news: HHS didn't have the authority to grant all those ObamaCare waivers

The actual bill, which the Democrats had to pass in order for the American people to find out what’s in it, didn’t spell out the authority to grant waivers, says Edmund Haislmaier of the Heritage Foundation.

Language granting HHS that power was never in the original law. Instead, through new rules and regulations, HHS gave itself the power last summer using a broad interpretation of certain parts of the law.

The annual limit requirement waivers exempt recipients for one year from having to increase the amount of health care coverage they provide their workers. Each year between now and 2014, the minimum annual limit rises to a new, higher amount. Though the waivers are only for one year, recipients can reapply and be re-approved every year through 2014.

Heritage Foundation health policy expert Edmund Haislmaier said HHS “exceeded its statutory authority” by issuing such waivers.

“The first problem is that it appears HHS has exceeded its statutory authority in creating this waiver process,” Haislmaier said in testimony before the House Oversight Committee’s subcommittee on Health Care. “The statute does not explicitly grant HHS authority to waive the application of this provision. In contrast, I count twenty-one other sections of PPACA [Patient Protection and Affordable Care Act] in which Congress did grant HHS explicit, new waiver authority with respect to specific provisions. Thus, it is reasonable to presume that if Congress had intended the department to institute a waiver process as part of its implementation of this particular provision, Congress would have said so in the statute.”

Statute, schmatute. Obama administration agencies have shown a clear pattern of going far beyond what Congress initially authorized those agencies to do. The EPA was never set up to regulate carbon as a pollutant, but it has seized that power unto itself. The NLRB was never supposed to bigfoot stomp on state right-to-work laws, but through its unprecedented action against Boeing, that’s exactly what it’s doing. And now we have HHS, which was never granted the authority to dole out ObamaCare waivers as some kind of political indulgence, is doing exactly that — over 1400 times.

The question is, how do we remedy this? Other than booting Obama next year, of course, which is the first thing that we need to do. Congress won’t even pass a budget, let along rein in rogue agencies. I say we sunset these bureaucracies. Build into law sunset periods for all of these executive branch agencies — EPA, NLRB, HHS, HUD, even the ones I happen to like, like NASA. Sunset them all. Make them justify their existence every few years. Make them explain past decisions, especially ones that seem to represent mission creep. If they can’t justify their existence, or if Congress fails to renew their authority, they go away.