Waiving Obamacare: HHS never had authority to issue exemptions

According to testimony at a recent hearing of the House Oversight health care subcommittee, the Patient Protection and Affordable Care Act (a.k.a. Obamacare) doesn’t actually grant the Department of Health and Human Services the authority to exempt employers from the law’s annual minimum health care coverage requirements. The Daily Caller reports:

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.

And as of May 13, 2011, HHS had issued quite a few — 1,372. But maybe such a wide interpretation of the regulatory power granted to HHS by Obamacare was warranted? Not so, says Haislmaier. In 21 other sections of PPACA, Congress explicitly grants HHS waiver authority with respect to other provisions. Obviously, that suggests Congress would have explicitly granted the Department the authority to waive the minimum annual coverage requirements, as well.

Why does this not surprise me? This administration has made no secret of its willingness to legislate through the executive branch. But this example exudes a special irony: The executive branch has to improperly legislate to undo — not extend — the legislative branch’s unwieldy legislation.

It’s all made worse, of course, by the way in which HHS has granted the waivers — with little to no transparency and with every appearance of political favoritism. But one congressman seeks to change that. Rep. Tim Huelskamp (R-Kan.), along with 31 of his Congressional colleagues, recently sent a letter to HHS Secretary Kathleen Sebelius to request clarifications about the waiver application and grant process.

“It is sheer hypocrisy to say that this is about healthcare ‘equality,’ but still grant special privilege exemptions to labor unions and businesses,” Huelskamp said in a news release. “Evidence continues to flow forth that these waivers are sometimes about who you know, as a multitude of them have been granted to labor unions that have supported the president or to businesses that are in former Speaker Pelosi’s district. This entire waiver process screams of political favoritism and is an abomination to the democratic process, to the concept of equality under the law, and to individual freedom and liberty.”

The letter asks Sebelius to identify the number and type of denied applications, the number and type of pending applications and the average time it takes to make a decision about whether to grant a waiver. That information would be a good start — if Sebelius responds — but, in light of Haislmaier’s testimony, the secretary has even more explaining to do.