Waivers, Federalism, and the Rule of Law (original) (raw)

In this article I evaluate recent federal use of waivers from complex, programmatic legislation in light of concerns regarding federalism and the rule of law. I look to the requirements for the rule of law spelled out by legal theorist Lon Fuller, as well as Supreme Court opinions in National Federation of Independent Business v. Sebelius, 1 and show how large scale waiver structures fail to meet them. Whether specifically provided for in the law or not, waiver provisions related to legislation like No Child Left Behind (NCLB) and the Patient Protection and Affordable Care Act (ACA), fail to empower states to engage in cooperative federalism through bargaining with federal regulators. Rather, in effect they force states to comply with discretionary demands of administrators in order to receive waivers and keep federal funding on which they rely. There is an obvious tension between a waiver-the government's decision to dispense with a statutory requirement in a specific instance-and the rule of law, defined as the cabining of arbitrary power through subordination of governmental acts to settled, consistent rules. Nonetheless, waivers are praised for providing administrators with flexibility to accommodate the variety of circumstances faced by diverse constituencies. In relation to federalism, waivers have been presented as offering states increased freedom in their dealings