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 those who suffer under government burdens would seek relief. And if a general repeal of the burdens doesn’t seem possible, then a waiver of its application to you or your company may seem like the next best thing. But such waivers add costs, complication, and additional unfairness to the process. And waivers seem to be an increasing feature of complicated and burdensome 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. 

It seems we have come to live in a world where Congress passes vast, expansive laws that make grand promises and that few if any members of Congress actually read, and then inserts into them the power for the president or his appointees to waive sections of them when they become unworkable or bump up against the interests of the well connected. Philip Hamburger of Columbia Law School says waivers raise “questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed — and therefore is binding — how can the executive branch relieve some Americans of their obligation to obey it?”

The Trump and Biden administrations’ tariffs on goods that Americans buy from Chinese sellers cost Americans money and reduce our standard of living. They should be lifted, especially now that there’s growing concern about inflation. In the meantime, maybe administrators should grant all the requests for exemptions and waivers. But we should stop passing laws that are so complex and so burdensome that waivers seem warranted. We’d be better off with fewer laws and regulations, simpler rules, and less need for waivers.