Liberals are touting an analysis by the Congressional Research Service (CRS) that they say “refutes” arguments against the Obama Administration’s legal authority to waive work requirements. But the funny thing is that, as shoddy as CRS’s analysis may be, it refuses to say that the Administration’s plan is lawful.
A tiny bit of background: The 1996 welfare reform requires that all able-bodied welfare recipients participate in work activities, and it enforces this by (1) cutting benefits for those who refuse to work, and (2) requiring state welfare programs to meet minimum work participation rates for welfare recipients.
Both of these requirements are in section 407. The general requirements for state welfare programs to receive federal funding are in section 402. And then section 1115 authorizes the Secretary of Health and Human Services to waive requirements in section 402.
In July, the Obama Administration claimed, for the first time ever, that it could waive the work requirements, despite the fact that they’re not in section 402 and there’s no indication that Congress intended for them to be waived in any instance.
So is the Administration right? CRS’s conclusion is…who knows?
Here’s the key bit of analysis: “If a court determines that the requirements of Section 402(a)(1) are not merely waivable reporting requirements, then a court is likely to find the Secretary’s interpretation that she may waive provisions of Section 402, in so far as they incorporate requirements in Section 407.”
And if I had ham, I could have a ham sandwich, if I had bread.
To reach this non-conclusion, CRS bungles more than a few points along the way:
- It relies on obsolete cases concerning the Secretary’s much broader waiver authority over the pre-1996 statute. The other cases it cites concern other programs with statutory language and structure that resemble the old welfare program.
- It ignores the structure of the 1996 act, which separates waivable and non-waivable provisions into separate provisions based on how much authority Congress intended to give the Secretary and the states.
- It ignores the precise language of the 1996 act. The work requirements, unlike other provisions, are stated in mandatory terms. Section 402 does not even mention the minimum work participation requirement.
- It gives enormous weight to prior waivers that were never tested in court without answering how the 1996 act limited the Secretary’s waiver authority.
- Though it correctly interprets a separate section as precluding the waiver of requirements for the transition year after the 1996 act was enacted, it never questions why Congress would have gone to such pains to make the work requirements absolutely mandatory for just one year and then allowed them to be waived forever after. That wouldn’t make any sense—which is strong evidence that it is not what Congress actually did.
- It states, incorrectly, that a court would basically defer to the Administration’s interpretation of the statute to answer the question of the Secretary’s waiver authority (a.k.a. “arbitrary and capricious” review). In reality, a court would probably decide that question on its own by looking at the statutory text and structure.
All of these errors are to the Administration’s advantage—but even that wasn’t enough for CRS to actually conclude that waiving welfare’s work requirements is legal.
The problem is that it isn’t legal, and nothing in the CRS report rebuts a single point made in our detailed analysis of the statute. That’s because CRS simply ignores the statute.
If this is the best that work opponents can do, then they haven’t got much. Not even a ham sandwich.