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Can Health-Care Waivers Be Justified?
...An initial concern is favoritism. One may assume that when the executive waives compliance with a law, it will grant waivers only to the most deserving applicants. Inevitably, however, it will find deserving applicants among those who have close contact with the administration, including many who are politically aligned with it.

Making matters worse, the executive tends to use waivers to co-opt political support for insupportable laws. When Americans are subject to severe legislation, they can unite to seek its repeal. All persons subject to a harsh law ordinarily must comply with it, and therefore will cooperate to fight it. Waivers, however, allow the executive to preserve such legislation by offering relief to the most powerful of those who might demand repeal, thereby purchasing their non-resistance at the cost of other Americans. Waivers thus shift the cost of objectionable laws from the powerful to others, with the overall effect of entrenching bad laws.

Waivers further undermine the political process by permitting lawmakers to escape the political consequences of drafting onerous laws. Lawmakers ordinarily have reason to worry about imposing severe rules. Waivers, however, remove the incentives for responsibly moderate legislation. Indeed, waivers transform irresponsible legislative burdens into occasions for executive beneficence.

Even more seriously, waivers are a threat to government by and under law. When the government grants a waiver or dispensation, it does not act through law, and yet it purports to liberate the recipient from the obligation of law. In other words, when the government grants a waiver, it acts above the law to permit others to act above the law, thus making waivers doubly lawless....