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National. Executive Branch of Government Uses Powers as Weapons

May 17, 2011

SUMMARY & COMMENTARY:

While this article deals specifically with the Health Care Act and what is/isn’t in it.  The abuses outlined in the article are taking place both at a national and at state and local levels. 

Legislators – the ones directly responsible to the people through the election process – have sold out their consituents to the executive branch.  Where one elected official appoints executives over the various agencies of government who have been given virtual carte blanch to run the country.  Thus the power has shifted from the legislature comprised of elected officials to the executive comprised of appointed officials that are not accountable to the electorate.

The legislature needs to start restricting the power of the executive branch and if the legislature fails to do so, the courts must step in or America will cease being a democracy land of the free, home of the brave.

ARTICLE:

HHS – WIELDING WAIVERS AS WEAPONS

Former House Speaker Nancy Pelosi’s plea that Congress would have to pass the 906-page Patient Protection and Affordable Care Act in order to “find out what’s in it” has become an instant classic in the annals of dysfunctional government.

The reason we will never know what is in the bill is NOT because the legislation is so long or so complicated, but because it lodges such tremendous discretion and power in the Department of Health and Human Services. In at least 700 separate instances, the legislation says that the Secretary of Health and Human Services “shall have discretion” to make rules implementing the law’s vague requirements.

While the identities of those who have received waivers have been disclosed, the administration has declined to reveal the names of those whose waiver requests were denied. Nor has HHS explained its criteria.

There are rumblings of suspicion that HHS has shown favoritism — labor unions have received some 26 percent of waivers while comprising only 12 percent of workers. As Rep. Fred Upton, R-Mich., chairman of the Energy and Commerce Committee remarked, “What does it say about the feasibility of the health care law when the administration needs to exempt over 1,000 health plans from its own law?”

A few wags have suggested that the HHS grant the rest of the country a waiver and be done with it. But the implications of what Professor Richard Epstein has called “government by waiver” aren’t funny. As Congress has ceded more and more power to regulatory agencies, the opportunities for abuse of power multiply. Writing in National Affairs, Epstein notes that among the companies and entities that successfully sought waivers from Obamacare’s provisions were PepsiCo, Foot Locker, the Pew Charitable Trusts, many local chapters of the Teamsters, the United Food and Commercial Workers union, and numerous public-employee unions.

But, asks Epstein, “(W)hat about employers who do not have the resources to navigate the waiver process? What about those lacking the political connections to make their concerns heard in Washington? And what happens when the one-year waivers run out? Will they be renewed? Under what conditions? And what rights will insurers have to waive then in order to avoid going out of business?”

The world of Obamacare is no place for the little guy.

Actually and more accurately – the world of regulatory agencies – is no place for the little guy.  The entire process is completely arbitrary with absolutely no oversight or consequences for administrators and executive branches that overstep their authority, the law or the constitution.

The danger of waiver power is that it will be used differentially, giving one private entity a competitive advantage over another. The company denied a waiver can bring suit — but litigation is expensive and slow.

Additionally, companies may fear government retaliation: “It is no accident that it is often public-interest groups or patient groups that take on the FDA, for instance. It is simply too risky for a pharmaceutical company with multiple applications before the agency to challenge one action if it is vulnerable to a government-induced slowdown on another,” writes Epstein.

The Court are no better than the legislature has been in protecting the American public from special interest and government abuse.

According to professor Epstein (and the records of the Courts themselves) 

The courts have NOT been particularly solicitous of those who challenge the regulatory state.  The reality is that courts have been downright hostile to the American litigant who dares to challenge the abuses being imposed on their liberties by an unchecked regulatory state.

Epstein observes with regret that “Most judges evince great faith in the administrative state, so that the abuse of discretion that lies at the heart of the waiver problem is, to them, a matter best sorted out by administrative expertise — a perpetually overestimated pool of wisdom.”

Because there are so few avenues of recourse when we live under a government by waiver, we are forced, as Epstein warns, to trust in the good judgment of bureaucrats and elected officials: “The fate of our rights and liberties is left to the wisdom and discretion of individuals; we are therefore governed by men, not by laws.”

In Marbury v. Madison, Justice Marshall wrote: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” It will also cease to deserve that “high appellation” if we submit to the unreviewable discretion of agencies.

http://www.realclearpolitics.com/articles/2011/05/17/wielding_waivers_as_weapons_109878.html

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