The
Heritage Network
Obama’s
Gutting of Welfare Reform Is Illegal
Todd
Gaziano and Robert Alt
July 16,
2012
Editor’s
Note: I voted for the Republican Majority who made this welfare reform
requirement part of the Contract with America in 1996. I am incensed
and
outraged that any sitting president or his administration would take it
upon
themselves to blatantly over-ride the requirements of a law written and
passed
by the Legislative arm of the United States government. There is a
reason for
the Separation of Powers that was written into the Constitution. Bob
Robinson
See below
for multiple links to articles on this “executive” decision. Noticeably
absent
will be stories by the recognized major newspapers and television
networks.
The
Department of Health and Human Services (HHS) has a General Counsel and
legal
staff to ensure that the agency’s actions are lawful. Did they take the
day off
last Thursday?
We have to
question whether the department lawyers were consulted at all about the
“Information Memorandum” issued by HHS last Thursday that invites
states to
come up with creative excuses (aka “demonstration projects”) to suspend
the
work requirements in the welfare reform law.
Given the
clear, unambiguous, and binding legal prohibition for that type of
waiver, if
they were consulted, the lawyers involved were embarrassingly careless
in
approving language that is in direct violation of federal law. Because
there is
no legal basis for permitting the waivers at issue, HHS needs to follow
the law
and withdraw the illegal Memorandum.
Last
Thursday, our colleagues Robert Rector and Kiki Bradley were among the
first to
expose the Obama Administration’s plan—through the HHS Memorandum—to
gut the
work requirement that was an essential foundation of the landmark
welfare
reform law of 1996. They explained one reason why the waiver authority
cited by
HHS does not allow the Secretary to waive the key work requirements. It
turns
out there is an even clearer, and express, legal prohibition in the
1996
statute against what HHS seems to want to do.
In short,
the HHS action that would be highly questionable when you read the
authorities
cited by HHS becomes completely indefensible when you examine all the
relevant
law.
As Rector
and Bradley noted, the waiver authority cited in the HHS Memorandum
only
authorizes the Secretary of HHS to suspend certain reporting
requirements under
the Temporary Assistance for Needy Families (TANF) law, not the
underlying work
requirements in section 407 of the act, now codified in 42 U.S.C. §
607. The
HHS Memorandum advances the flimsy argument that:
While the
TANF work participation requirements are contained in section 407 [now
section
607 of the code], section 402(a)(a)(1)(A)(iii) requires that the state
plan
“[e]nsure that parents and caretakers receiving assistance under the
program
engage in work activities in accordance with section 407.” Thus, 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,
including definitions of work activities and engagement, specified
limitations,
verification procedures, and the calculation of participation rates.
Rector and
Bradley correctly argued that the best way to read these different
provisions
is that the Secretary’s power to waive state reporting requirements
should not
be read to permit the Secretary to do what the waiver provision does
not
authorize and indeed forbids by implication: waiving the substantive
work
requirements of another section.
But there
is an even more pointed reason to come to the same conclusion: Federal
law
expressly prohibits the Secretary from waiving the work requirements!
Section 415(a)(2)(B)
of the welfare reform act, now codified at 42 U.S.C. § 615(a)(2)(B),
expressly
states that “a waiver granted under section 1315 of this title [the one
that
HHS now claims it is acting under] or otherwise which relates to the
provision
of assistance under a State program funded under this part (as in
effect on
September 30, 1996) shall not affect the applicability of section 607
of this
title [which applies the work requirements] to the State.” In short,
whatever
else might be said of the scope of the waiver authority, the Secretary
has no
lawful authority to waive the work requirements of section 607, which
is what
HHS is contemplating in its Memorandum.
On the same
day the HHS Memorandum was issued, House Ways and Means Chairman Dave
Camp (R–MI)
and Senate Finance Committee Ranking Member Orrin Hatch (R–UT) sent a
pointed
letter to HHS Secretary Sebelius asking for the department’s legal
reasoning by
the end of today (Monday), stating that they “believe [HHS’s position]
is
deeply flawed and specifically contradicted by TANF and related
statutory
language.” A source from the Finance Committee indicated that as of the
time of
this writing, the Secretary has not yet acknowledged their request.
Some sort
of explanation is obviously needed. The statutory language here is so
clear
that it is difficult to imagine how HHS could justify the language of
the
Memorandum or its primary object. The least painful approach for the
department
is to retract the Memorandum. An explicit confession of error would be
nice,
but an implicit acknowledgement is all that is necessary. But whatever
the
explanation, HHS needs to follow the law and withdraw the illegal
Memorandum.
Read this
and other articles at The Heritage Network
The
Conservative Papers, Obama’s Gutting of Welfare Reform is Illegal, click here
The
Chattanoogan, Graves Says Obama Is Gutting Welfare Reform, click here
The Hill,
Romney, GOP blast Obama for ‘gutting’ welfare reform law, click here
The
American Thinker, Gutting welfare reform for fun and political profit, click
here
Washington
Examiner, Romney hits Obama move gutting welfare reform, click here
Want
more? Just do a browser search for
“Obama gutting welfare reform.” You’ll find multiple comments on this
decision;
you’ll also find that the recognized major newspapers and the networks
are all
notably silent.
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