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Hamburger on Waivers — Part III
... 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. . . .

the health-care statute says nothing about granting HHS a power to waive the restricted annual limits. As reported by David J. Shestokas, congressman Cliff Stearns of Florida — chairman of the House Energy and Commerce subcommittee on oversight and investigations — complained, “The word ‘waiver’ is not in there. We can’t find it anywhere.”

Of course, Congress could have granted the power to waive the restrictions in a more subtle manner — for example, as part of the substantive authority granted to the secretary of HHS to determine the restricted annual limits. But statutory provisions must be understood in their statutory context, and this context shows that when Congress sought to give the secretary a waiver power, it had no difficulty doing so expressly. For example, in its provision on state innovation, the statute specifies that “The Secretary may grant a request for a waiver . . . ” In contrast, in its provision on restricted annual limits, the statute does not say anything of the sort. Evidently, Congress did not delegate a waiver power for the restricted annual limits....