Prominent Lawyer: Obama Administration Illegally “Eviscerates Welfare Reform”

In The Washington Times and a recent study, attorney Andrew Grossman explains in detail how the Obama administration violated the law in claiming the authority to waive the work requirements in the 1996 welfare reform law. (Grossman, who received an award from the Library of Congress, has helped write federal legislation, and handles high-profile Supreme Court cases.) The fact-checkers at The Washington Post may consider any such legal violation to be a mere “process foul,” but I think the Obama administration should have complied with the law forbidding such waivers regardless of whether they are supposedly good for welfare recipients’ careers in the long run (an idea that clashes with the “work-first” philosophy behind the 1996 law). Congress has the power to rewrite laws, not the president, and the Obama administration’s action flouted the language, structure, and purpose of the welfare-reform law.

Other experts have also concluded that the Obama administration has gutted welfare reform, conclusions summarized in my essay, “Obama guts welfare reform, independent experts say; work requirement weakened.”

In arguing that waivers won’t lead to the gutting of the 1996 welfare reform law, since the Obama administration now says it won’t approve waivers unless it makes welfare reform more successful, left-leaning “independent” fact-checkers like PolitiFact and Factcheck.org chose to rely on political spin from the Obama administration in response to the furor over its action, and self-serving, unsubstantiated, and non-binding statements about its intentions, rather than on what the Obama administration actually did in claiming for itself the broad authority to waive the work requirements at the heart of the welfare-reform law (and what it actually said in its July 12 HHS memo claiming that authority, which discussed “the sort of waivers they want to grant,” which do indeed “weaken work requirements,” and did so in response to a waiver request by Nevada, which expressly sought to weaken work requirements, as Mickey Kaus has noted at The Daily Caller).

Why they were so quick to credit the Obama administration’s self-serving claims about how it will use the waivers is unclear. As a sarcastic Peter Suderman observes at Reason magazine, “as we all know, it’s usually the case that when executive agencies claim legally dubious new powers they only use them to do good things, especially when they promise not to abuse their new authority. But still I have to ask: Why claim authority to waive the work requirements if not to undermine them?” HHS claims that waivers will lead to 20 percent more welfare recipients moving to work (“compared” to a peculiar “past” benchmark). But any such increase might simply be the product of more people going on welfare in the first place due to the waiver. As Suderman notes, “the easiest way” for a state to” increase the number of welfare recipients  moving to work “is just to enroll far more people in the [welfare] program” in the first place by encouraging more people to go on welfare. Waiving work requirements in favor of job training does just that, increasing welfare dependency in the long run — which is precisely why the work requirements in the welfare reform law were designed to be unwaivable. As Kaus notes, under the Obama administration’s proposed waivers:

[Y]ou’ll keep getting a welfare check for “training” or for “job readiness,” or for going to school for an “extended … period,”even though the law would otherwise say it’s time to get to work. . . it’s a weakening of the work requirement. (It’s also unfair to the poor suckers who just go to work without ever going on welfare–they don’t get subsidized while they’re ‘pursuing a credential.’)