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.