ObamaCare Doesn’t Give Sec. Sebelius Waiver Authority

Previous posts on this blog, Prescription for Disaster, have detailed how HHS Secretary Sebelius has used waivers to give special treatment to several of the Obama Administration’s favored groups, like labor unions.  A new analysis by Philip Hamburger, a law professor at Columbia Law School, calls into question whether Sebelius even has the legal authority to issue these waivers.

Section 2711(a) of ObamaCare prohibits insurers from imposing lifetime coverage limits and “unreasonable annual limits” on insurance policies. HHS issued regulations on June 28, 2010 that established the annual coverage limits.  The statute does not give the Secretary any authority to waiver these coverage limits.  So how is it that the Secretary has issued 1,040 waivers affecting 2.6 million?  In an Insurance Standards Bulletin, HHS’s Office of Consumer Information and Insurance Oversight said. “the regulations also provided that these restricted annual limits may be waived by the Secretary of Health and Human Services (HHS).”

What does that mean?  It means that, according to HHS, Secretary Sebelius gave herself waiver authority.  She wrote regulations that give her more authority than the statute gives her.  Congress did not provide Sebelius waiver authority.  The word waiver appear 97 times in the law – but not in relation to annual coverage limits.  If Congress had intended her to be able to waive annual limits, Congress could have given her the authority to waive the limits.

This power grab on the part of the Secretary should be deeply disturbing to every American. If ObamaCare stands for the principle that unelected bureaucrats can give themselves powers by regulatory fiat, and without regards to Congressional delegation, then ObamaCare has caused us to lose far more than previously thought – it means we have also lost America’s republican form of government.


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