The Obama Department of Health and Human Services (HHS) released an official policy directive rewriting the welfare reform law of 1996. The new policy will grant waivers allowing states to bypass the federal work requirements that serve as the foundation of the reform law.
The welfare reform law passed under former President Clinton replaced the old Aid to Families with Dependent Children with a new program called Temporary Assistance for Needy Families (TANF). The idea was that able-bodied adults should be required to work or prepare for work as a condition of receiving aid.
The welfare reform law was very successful. In the four years after it’s passage, the caseload dropped by nearly half, employment surged and child poverty among affected groups plummeted. The driving force behind these gains was the new federal work requirements contained in the TANF law.
The Obama Administration’s new directive states 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 listed in section 1115. The work provisions of the TANF program are contained in section 407. Of the roughly 35 sections of the TANF law, only section 402 is listed as waiveable under section 1115.
Section 402 describes state plans—reports that state governments must file to HHS describing the actions they will undertake to comply with the 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 parts of the law.
The Obama administration is asserting 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 all together.
Obviously, if the Congress had wanted HHS to be able to waive the TANF work requirements laid out in section 407, it would have listed that section as waiveable under section 1115.
Congress did not do that, for reasons that are fairly obvious.