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HHS Can’t Waive Workfare
Here’s why.

President Barack Obama and HHS secretary Kathleen Sebelius

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The welfare reform of 1996 stands as perhaps the most important entitlement reform in the nation’s history. Its successes stem from a core requirement that able-bodied parents must work, search for work, or train for work to be eligible for public assistance.

But now, under the guise of providing states greater “flexibility” in operating their welfare programs, the Obama administration claims unjustifiable authority to weaken or waive the work requirements at the heart of the reform law. There’s just one problem: The law is clear that those requirements can’t be waived.

The work requirement was no doubt the most controversial provision of the 1996 welfare reform. Even after President Clinton twice vetoed reform bills, Congress refused to budge on Section 407, which defines “Mandatory Work Requirements.” Clinton reluctantly signed the final “workfare” measure into law.

Fast forward to July 12, when the Obama administration’s Department of Health and Human Services (HHS) issued an “information memorandum” to state welfare-plan administrators regarding “waiver and expenditure authority.” Essentially, HHS secretary Kathleen Sebelius contends that a separate provision gives HHS authority to waive the work requirement in Section 407 of the welfare-reform law.

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Bear with us. We’ll try to keep the gobbledygook to a minimum.

The HHS memorandum contained a single paragraph of convoluted legal analysis supporting this novel contention. It claims that because that other provision “authorizes waivers concerning Section 402,” and because Section 402 mentions Section 407, “HHS has authority to waive compliance with this 402 requirement and authorize a state to test approaches and methods other than those set forth in Section 407.”

But this claim by HHS is wrong.

Section 407 establishes stand-alone work requirements for state welfare plans that brook no exceptions. And Section 407 is absent from the list of sections that the HHS secretary does have the authority to waive. That alone proves that Sebelius lacks any authority to waive the work requirements.

Indeed, Section 407 shows that Congress was concerned that HHS or states would attempt to evade the law’s strict work requirements. To prevent backsliding, Congress legislated in great detail, defining terms with specificity and setting hard caps on exemptions.

For example, rather than leave the matter to administrative discretion, Section 407 enumerates twelve “work activities” that satisfy the state and individual work requirements and specifies the number of hours per week that family members would be required to work. It even spells out how work-participation rates would be calculated, to prevent gaming by the states or HHS.

Secretary Sebelius’s lack of authority to waive work requirements is confirmed by another provision of the 1996 law. It’s a bit ambiguous, in one respect: Some say the provision bars any waiver of work requirements. Others (including the Obama administration) say it applied only to waivers during the year-long transition period following the 1996 reform, as new requirements were being phased in.

In fact, the Obama administration’s interpretation, even if accepted by a court, actually is fatal to its waiver argument. It concedes that Congress allowed states obtaining waivers in the interim period after the 1996 law’s passage to ignore every single new requirement in the law except for the work requirements contained in Section 407, which states were required to implement immediately.

It makes no sense to suggest that Congress was so concerned about ensuring that work requirements weren’t waived that it inserted a stopgap provision to prevent waivers during the interim period but then authorized HHS to waive those requirements at will at any time afterward.

If the Obama administration’s reading of this ban on interim waivers is correct, then its claim that it has the power to waive work requirements after the interim period is surely wrong.

 “We’re going to look every single day to figure out what we can do without Congress,” President Obama said late last year. The president has followed through on that promise, weakening legal requirements enacted by Congress on immigration, education funding, and now welfare. But his power to act unilaterally in domestic affairs is limited both by his constitutional obligation to “take care that the laws be faithfully executed” and by the laws that Congress passes.

In this instance, Obama chose to disregard those legal limits. There is absolutely no indication, in the text of the 1996 welfare reform or elsewhere, that Congress intended to allow the waiver of the centerpiece provision: work requirements.

To waive those requirements is to violate the “workfare” law, the Constitution’s vesting of legislative power in the Congress, and the president’s fundamental duty to faithfully carry out all the laws.

— Andrew M. Grossman is visiting legal fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, where Robert Rector is senior research fellow for domestic policy. This commentary is based on Grossman’s new legal memo, “Welfare Reform’s Work Requirements Cannot Be Waived.



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