Has given way to rule by waiver under this administration.
On July 12, 2012, the Obama administration’s Department of Health and Human Services issued a policy directive rewriting the successful welfare-reform law of 1996. The HHS directive strikes directly at Section 407, allowing states to waive the TANF work requirement?—?thereby gutting the program of its most critical reform element and savaging both the letter and the intent of the ’96 law. This move was not just counterproductive, but illegal. In establishing welfare reform, Congress had made the core work requirements of the TANF program mandatory and non-waiveable. It had explicitly protected those requirements from any future administration that might seek to weaken them.
In attempting to explain its unlawful changes, the Obama administration claimed the authority to waive the TANF work requirements through a legal device called Section 1115 waiver authority. Section 1115 of the Social Security Act states that “the [HHS] Secretary may waive compliance with any of the requirements” of specified parts of various laws; the purpose was largely to allow states the flexibility to launch test projects and other policy experiments. With this in mind, laws enacted through the Social Security Act since 1935?—?including the ’96 welfare reform?—?specifically enumerate which parts of the statute may be waived by the HHS secretary using Section 1115 authority. Indeed, in order for a provision of a law to be waived under Section 1115 authority, that provision must be listed in Section 1115 of the Social Security Act itself. The idea is to avoid granting open-ended authority to the HHS secretary to waive important provisions of welfare and health-care laws at will.
As noted above, the work provisions of the TANF program are contained in Section 407 of the welfare-reform law. And Section 407 of the welfare-reform law was deliberately not listed in Section 1115 of the Social Security Act. Section 407 was titled “Mandatory Work Requirements” for a reason; those requirements cannot legally be waived. The only section of the TANF law that can be waived is Section 402, which describes “state plans”: reports that state governments must file to HHS describing the actions they will undertake to comply with the many requirements established in the other sections of the TANF law. The authority to waive Section 402 provides the option to waive state reporting requirements only, not to overturn the core requirements of the TANF program contained in the other sections of the ’96 law. The Obama administration asserts that because the work requirements established in Section 407 are mentioned as an item that state governments must report about in Section 402, all the work requirements can be waived.
Does a private taxpayer have standing to ask a Federal court for an injunction against disbursing any funds to welfare applicants who do not meet the work requirement? If not, what other recourse do we have?
I was about to describe the last election as Black November, then it hit me that that would almost certainly be taken an unintended way. I’m going to have to think about the right epithet.