Health-Care Waivers and the Courts

http://www.nationalreview.com/articles/261982/health-care-waivers-and-courts-philip-hamburger

As argued in these pages, these waivers are an unconstitutional exercise of the dispensing power, which creates a power above law and thereby threatens equal rights under law. The point here, however, is more basic. The constitutional defense of the health-care waivers has thus far been a defense of waivers in general, without attention to the realities of the health-care statute. As a result, the defense of the waivers not only is wrong on the Constitution but also is irrelevant to the statutory realities.

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