Waivers, Federalism, and the Rule of Law

Abstract

Waivers from legislation have been praised as the foundation for a new era of collaborative federalism. But these exceptions of law, often made without clear statutory authority, undermine the necessary basis for collaboration among governmental entities. That basis is law. Waivers in effect dispense from or even change laws in the interests of administrative flexibility. And, while some commentators have lauded this increased flexibility as empowering for state governments in particular, the real effect is to reduce relations based on law to a condition of perpetual bargaining in which federal administrators hold all the power. Able to change rules and even laws almost at will through new waiver programs and criteria, federal agencies gain arbitrary power, undermining the ability of states and people to plan for their futures on the basis of known rules—the most basic and necessary good provided by the rule of law.