Supposed “Bipartisan” Consensus Can’t Waive Laws Such As Welfare Reform And Its Work Requirements

As I’ve noted before, the Obama administration violated the text, structure, and purpose of the 1996 welfare reform law, in claiming the authority to waive its work requirements, which were specifically designed not to be waivable, in its July 12 HHS memorandum. (Contrary to the administration’s claims, that memo did indeed strike at the very heart of welfare reform.)

One thing that really annoys me as a lawyer is the false suggestion by people like Ron Haskins of the Brookings Institution that the Obama administration’s action would have been okay if the administration had merely conferred with congressional Republicans first; and the bizarre claim by the Huffington Post that the administration’s expansion of waivers must be okay because it was supported by people such as Nevada’s Republican governor, giving it a bipartisan basis. (Haskins’ statement, and the alleged support of Republican governors, was then cited by The Washington Post‘s Glenn Kessler to call the administration’s action nothing more than a “process foul and poor coordination with Congress.” Never mind that the administration’s action was greeted with outrage by Republican lawmakers like House Speaker John Boehner, who took issue with the substance of its action, not just the Obama administration’s failure to consult with them.)

This makes no sense. The Obama administration’s flouting of the 1996 welfare reform law would not have been cured by consulting with Republicans before doing so. Laws cannot be ignored even on a bipartisan basis. A president and his aides can’t ignore a law by consulting with politicians of the opposing party and getting their individual approval to nullify or rewrite the law. Instead, the president has to get both Houses of Congress to formally vote to change the law. In INS v. Chadha (1983), the Supreme Court ruled that a law’s application could not be waived by a single House of Congress, much less individual lawmakers, since that violated the constitutional separation of powers and the constitutional requirements of bicameralism and presentment.

(Haskins, who is not a lawyer, assumed that since he had come around to the conclusion that the Obama administration’s waiver rule was a “good” concept, congressional Republicans likely would not have objected had they only been consulted in advance — although the failure to consult with them “violated” the “spirit of the law.” He reached this strange conclusion even though he was initially “shock[ed]” by the Obama administration’s action and viewed it as “illegal,” since it was based on a “tortured” interpretation of the statute, and appeared to violate constitutional “separation of powers” principles by unilaterally rewriting a law without congressional consent.)

Nor can such violations be treated as a mere technical “process foul” if they have bipartisan support. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), a constitutional case that I helped bring as a lawyer, the Supreme Court struck down a provision of the Sarbanes-Oxley Act that made a federal agency less accountable on separation of powers grounds, even though that provision was supported by both the president and lawmakers of both parties, and was passed 99-to-0 by the Senate. In United States v. Morrison (2000), another constitutional challenge I helped bring as a lawyer, the Supreme Court struck down a federal law, 42 U.S.C. 13981, on constitutional federalism grounds, even though though that provision was supported by both the federal government, and state attorneys general of both political parties, and had passed the Senate by a 99-to-0 vote. Legal and constitutional violations don’t  became acceptable just because they have broad support among lawmakers of both parties in multiple branches of government.

Thus, weakening welfare reform’s work requirement based on consultations with the opposing party, but without first obtaining House and Senate votes formally approving such changes and enacting them into law, would violate constitutional checks and balances that promote government accountability, transparency, and the rule of law. The Founding Fathers intended that America be governed by written laws adopted after public debate and deliberation, not based on deals reached through backroom consultations or cabals, even if such a cabal reaches across party lines and is thus “bipartisan.” (The fact that something is “bipartisan” might not make it a good idea on the merits in any event. Former Senator Alan Simpson and veteran congressional staff have reputedly said that bipartisanship is what results when “the evil party and the stupid party get together” to do something that is “both stupid and evil.”)