By waiving his rights, Biden maintains Trump's rule

Waivers, in any case, are not an effective method to operate a trade policy or a government. The waiver rule is not the same as the rule of law.

Yuka Hayashi and Josh Zumbrun report in the Wall Street Journal that businesses are frustrated by “the Biden administration’s new China trade policy,” which sounds a lot like the Trump administration’s old China trade policy. Businesses were hoping for some tariff relief, but the administration says that’s not coming any time soon. At least, businesses had hoped, if the administration kept the tariffs, it “would again allow companies to appeal for exemptions from tariffs, a process that had mostly expired by the end of last year.” But not so much:

The Office of the U.S. Trade Representative said it would consider granting exclusion waivers on 549 product categories, a fraction of the more than 2,200 items that were eligible for tariff relief earlier in the Trump years.

It’s not obvious that the opportunity for waivers was all that useful, given that almost all requests were rejected, according to a chart accompanying the article based on GAO figures.

But in any case waivers are no way to run a trade policy, or a government. The rule of waivers is not the rule of law.

It's understandable that folks who are burdened by the government seek respite. If a complete repeal of the burdens does not appear to be conceivable, a waiver of the burdens' application to you or your organization may appear to be the next best thing. However, such waivers increase the expense, complexity, and unfairness of the process. Waivers appear to be becoming a more common component of difficult and costly laws.

During the Obama administration, for instance, Secretary of Education Arne Duncan announced that he would unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014. We’ve criticized that unrealistic requirement ourselves. But unrealistic or not, it’s the law. According to the New York Times:

Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush‐​era law, which he called a “slow‐​motion train wreck.”

Again, I too think Congress should rewrite — or repeal — this law. But alas, it hasn’t done so. Even the Times, often comfortable with the exercise of federal and executive power, notices that

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.

Which is a little misleading; in the 1960s Congress passed laws that extended federal power over local schools. The exercise of executive power is a different issue.

Duncan’s plan to waive bad provisions of a law was reminiscent of the more than 1,000 waivers from the provisions of the new health care law that Health and Human Services Secretary Kathleen Sebelius had already granted. During the Trump administration immigration law seemed to deteriorate into “arbitrary executive actions in which immigrants, workers, students, and visitors plead the government for waivers and exceptions under narrow and vague criteria set by the executive branch.“One problem with such waivers, of course, is the suspicion that they will be granted to the politically connected or even to political supporters.

We appear to be living in a world where Congress passes vast, expansive laws that make grand promises but that few, if any, members of Congress actually read, and then inserts the power for the president or his appointees to waive sections of them when they become unworkable or conflict with the interests of the well-connected. Waivers pose "issues about whether we exist under a government of laws," according to Columbia Law School's Philip Hamburger. Congress can adopt laws that apply to some firms but not others, but how can the executive branch relieve some Americans of their legal obligations once a bill has been passed — and so is binding?

Tariffs imposed by the Trump and Biden administrations on items purchased from Chinese merchants cost Americans money and lower our standard of living. They should be raised, especially since that inflation is a significant worry. In the meanwhile, perhaps administrators should grant all exemption and waiver requests. However, we should cease enacting laws that are so complicated and costly that waivers appear to be necessary. Fewer laws and regulations, simpler rules, and fewer waivers would be preferable.

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