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In the latest issue of National Affairs, Richard Epstein writes about the dangers of “government by waiver,” rather than rule of law:
People concerned for their freedom and rights are always most alert to threats that arise when governments (or other powerful institutions) force us to do what we don’t want to do… But we are not sufficiently alert to the flip side of this problem: the risks that come with the power to create exceptions and to grant dispensations. Indeed, this is a much more subtle, insidious assault by government: Rather than setting the state and the private sector against each other in a healthy tension, it fuses them, making the private sphere dependent on the government’s benevolence.
The Obama administration seems particularly interested in exploring the lack of limits waivers allow, offering them in advance of the healthcare overhaul, to provisions of Dodd-Frank, and now on No Child Left Behind if Congress doesn’t reauthorize the law by Education Secretary Arne Duncan’s deadline.
Just as Epstein writes, states are already lining up for the NCLB waivers—Kentucky, Maine, Kansas, Michigan. What a perfect solution to onerous federal regulations: random exceptions granted in return for unspecified favors! Can the government sound any more like the Mafia?
Image by Rebecca Cohen/Medill News Service.