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Did the Obama Administration Illegally Waive the Welfare Work Requirement? (Is the Romney ad a Lie?)

Posted on | August 30, 2012 | 3 Comments

They may as well have, because they have solicited requests for waivers from the work requirement, but they do not have the statutory authority to grant waivers from the work requirement. Let me walk you through the law. Bear with me.

The work requirement for welfare is laid out in Section 407 of the Social Security Act – and welfare is called “Temporary Assistance for Needy Families” or “TANF.” The Congress did not grant any authority to waive the requirements in Section 407. Section 402, however, can be waived. Here’s how HHS explains it:

Section 1115 allows for waiver of compliance with section 402 of the Social Security Act to the extent and for the period necessary to enable a state to carry out an approved project. While the TANF work participation requirements are contained in section 407, section 402(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. [emphasis added]

That seems rather straightforward. HHS can waive the requirement that the state plan require “work activities”. Right? Well, not if you understand how to read a statute, and Obama Administration officials clearly don’t. The Section that HHS waives is not the requirement for States to have a plan that requires work. Section 402 merely tells the States what to put in their reports on how they are implementing the work requirements of Section 407. The statutory obligation to require work for welfare remains, in Section 407, which cannot be waived. Secretary Sebelius has hidden the context of what she is waiving in order to make it look acceptable. Here’s the context.

Sec. 402. [42 U.S.C. 602] (a) In General.—As used in this part, the term “eligible State” means . . . a State that . . . has submitted to the Secretary a plan that the Secretary has found includes the following:

(1) Outline of family assistance program.—

(A) General provisions.—A written document that outlines how the State intends to do the following:
. . .
(iii) Ensure that parents and caretakers receiving assistance under the program engage in work activities in accordance with section 407.

The point of the report is for States to tell HHS how they plan to comply with the work requirement. That’s all the HHS has waived. The reporting requirement, not the substantive work requirement in Section 407. So as a matter of statutory construction, the Department of Health and Human Services cannot waive the work requirement. Nevertheless, the “Secretary is interested in using her authority to approve waiver demonstrations . . .” – so she wants to grant waivers and is actively soliciting requests, but then says, no worries, it’s just to get people employed – “. . .to challenge states to engage in a new round of innovation that seeks to find more effective mechanisms for helping families succeed in employment.” But success in employment is the desired outcome of welfare and what ends your eligibility. So, she’s not saying she’s still requiring work while on welfare. And it is a laudable goal to seek innovation for more effective ways to get people off welfare and into work. But the Congress has already chosen the mechanism – work under Section 407 – and it has been quite successful since signed by President Clinton. The administration simply cannot substitute its judgment for that of Congress on this matter.

So granting these waivers is a violation of the law. And unconstitutional.

But, is the Romney campaign accurate to say that the Obama Administration has gutted the law or eliminated the work requirement? Would it be accurate to say they plan to gut the law or to eliminate the work requirement? Certainly, what’s going to happen tomorrow is merely speculation so it’s not a matter of truth or falsity but of opinion. You may disagree that the HHS directive signals the administration’s plans to eliminate the work requirement. However, HHS is actively soliciting waiver requests, and even lists a number recommended “projects”, most of which effect how the work participation rate is calculated (counting things that aren’t work), or redefining “work”, or calling pursuit of a “credential” (like what, law school?) work. There’s even a recommendation for something “in lieu of participation rate requirements”, i.e., in lieu of work.

So, the Administration hasn’t yet “gutted” the work requirement, but they are saying they won’t enforce it. Which is really the same thing.


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3 Responses to “Did the Obama Administration Illegally Waive the Welfare Work Requirement? (Is the Romney ad a Lie?)”

  1. Joaquin
    August 31st, 2012 @ 11:01 am


  2. Cara
    September 3rd, 2012 @ 1:11 am

    Fantastic overview– I wasted hours on what were either ignorant or biased fact checking websites with no real evidence. Then I read the statute for myself. What a load of BS the so-called “unbiased” PolitiFact website is.
    You are the first article I’ve read that actually quoted and defined the relevant statute. I wish I had come here first. Thanks!

  3. bruce
    September 3rd, 2012 @ 2:00 pm

    Seems to me the waiver means that states would still be considered “eligible” if their plans are not in accordance with S407, so it is exactly as HHS says, despite your attempt to twist the logic into a pretzel to make it so confusing that people give up trying to follow it and just assume you’re telling the truth.

    But the real point is that HHS’s stated goal is to increase the work outcomes of people who are on welfare, and they clearly state in a letter that only plans that demonstrate (or project) that result will be granted the waiver. Your argument is completely bogus.

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