Bruce P. Frohnen

Waivers, Federalism, and the Rule of Law

In this article I evaluate recent federal use of waivers from complex, programmatic legislation in light of concerns regarding federalism and the rule of law. I look to the requirements for the rule of law spelled out by legal theorist Lon Fuller, as well as Supreme Court opinions in National Federation of Independent Business v. Sebelius and show how large scale waiver structures fail to meet them. Whether specifically provided for in the law or not, waiver provisions related to legislation like No Child Left Behind (NCLB) and the Patient Protection and Affordable Care Act (ACA), fail to empower states to engage in cooperative federalism through bargaining with federal regulators. Rather, in effect they force states to comply with discretionary demands of administrators in order to receive waivers and keep federal funding on which they rely.

Burkean Virtue and the Conservative Good Life

Abstract Variously characterized as pragmatic, utilitarian, skeptical, or prudential, Edmund Burkes thought is not seen as providing a full and coherent prescription for how we should live our lives. I argue that Burke does provide such a prescription; one embodied in the notion of a conservative good life. In this good life, citizens serve society, in their historically prescribed positions and capacities, out of affectionate attachment to family, locality, and nation. Much like Aristotle, Burke emphasizes the habitual nature of virtue and the need for fitting actions within given circumstances. Unlike Aristotle and the modern republicanism so often associated with Aristotelian thought, Burke emphasizes the need to accept, out of love, the traditional institutions, beliefs, and practices of society so that the conservative good life and the defense of the familiar that is its basis may be possible.