The Heritage Foundation picked up on a little noticed administrative policy change announced yesterday by the Department of Health and Human Services that removes the work requirements in the landmark 1996 welfare reform legislation.
Here’s how Heritage characterizes the Obama HHS’s new policy:
[On Thursday, July 13, 2012] the Obama Administration issued a new directive stating that the traditional TANF work requirements can be waived or overridden by a legal device called the section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).
Section 1115 states that “the Secretary may waive compliance with any of the requirements” of specified parts of various laws. But this is not an open-ended authority: Any provision of law that can be waived under section 1115 must be listed in section 1115 itself. The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, are deliberately not listed in section 1115; they are not waiveable.
In establishing TANF, Congress deliberately exempted or shielded nearly all of the TANF program from the section 1115 waiver authority. They did not want the law to be rewritten at the whim of Health and Human Services (HHS) bureaucrats. Of the roughly 35 sections of the TANF law, only one is listed as waiveable under section 1115. This is section 402.
Section 402 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 TANF law.
The new Obama dictate 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. This removes the core of the TANF program; TANF becomes a blank slate that HHS bureaucrats and liberal state bureaucrats can rewrite at will.
This newly created waiver authority builds on the unprecedented work of the Education Department waiving No Child Left Behind requirements, and HHS’s previous ObamaCare waivers.
It also reaffirms the Obama Administration’s commitment to its “We Can’t Wait” vision of governance, which says that if Congress won’t cooperate in passing liberal policies, then the President and his bureaucratic administrators will rewrite the law without them.
The administrative state remains constitutionally suspect because the Supreme Court has never explained how bureaucracies that exercise quasi-judicial, executive and legislative powers align with the separation-of-powers principle enshrined in our Constitution. (Hint: They don’t.)
But because the Supreme Court has chosen to allow an unconstitutional barnacle to be grafted onto our ship of state, we now have liberal policy wonks passing, enforcing, and adjudicating laws through waiver requirements that are completely beyond the reach of democratic accountability. (Sound familiar?)
The Obama Administration’s use of waivers to replace existing law with its own policies is bringing us to a tipping point. If taken to its logical conclusion, Congress need not pass another law so long as the Executive can waive-and-replace its contents at will.
Like so many other issues this election cycle, Mitt Romney and others need to stress the importance of the Obama Administration’s lawless disregard for our constitutional system. Administrative fiat cannot be accepted as a valid substitute for legislative deliberation. If it is, then America will in every sense be a nation of men and not laws.