an HHS regulatory “information memorandum” in July . . .said the agency would waive workfare requirements if states asked.
HHS is selling this under the guise of “flexibility” and says the point is to get more people working, not fewer. But recall that the joint state-federal welfare program has always had “work” requirements. Prior to 1996, they included such demands as journaling, bed rest and massage therapy.
For this reason, the statute specifically enumerated a 12-point definition of “work.” People who can but don’t meet the work terms eventually lose benefits. States have enormous flexibility to help recipients back into the job market. But they forfeit a portion of their federal money unless a certain percentage of their caseload complies—generally between 30% and 40%.
HHS has unilaterally upended these incentives. States can now get a waiver if they want “to test approaches and methods other than those set forth in section 407,” the work requirement provision, including new “definitions of work activities and engagement.”
But states are already allowed to experiment now, as long as beneficiaries meet the work quotas defined by current law. The crucial change is that HHS is saying they can experiment instead of complying with the law.
HHS suggests, for example, that states adopt “a comprehensive universal engagement system in lieu of certain participation rate requirements.” Universal engagement means that everybody is doing something constructive with their time “for at least one hour per week,” even if that’s as simple as “researching child care options” or “a job readiness workshop,” as a 2008 HHS document put it. So everybody can spend an hour looking into day care instead of—”in lieu of”—the work that 30% to 40% are supposed to be doing.
This new standard didn’t appear out of thin air, but is part of a liberal critique of welfare reform that has made its way into the Administration. In 2005, Mark Greenberg of the Center for Law and Social Policy told Congress that welfare needs to be retargeted to families that are “not in work and not receiving welfare” . . .
Where’s Mr. Greenberg now? Well, he’s an HHS deputy assistant secretary for policy and the architect of the workfare waiver.
The problem with the waiver is also its illegality. Congress went to great lengths to ensure that work requirements aren’t subject to waivers to prevent backsliding. Yet with no more than a paragraph of legal analysis, HHS simply ruled it could suspend enforcement of laws that Mr. Obama does not like. This is unconstitutional, as the Washington lawyers David Rivkin and Lee Casey noted in these pages.
When its welfare rewrite became a political issue, HHS then invented a new standard that appears nowhere in its original memorandum and says that 20% more people need to move to work from welfare than before to get a waiver. The Heritage Foundation’s Robert Rector points out that this metric is bogus. The easiest way to achieve it statistically is to put 20% or more people on the rolls and then get credit when some naturally leave.
Other lawyers have previously explained how waiving the work requirements in the 1996 welfare-reform law, as the Obama administration has advocated, violates provisions of that law. As Todd Gaziano and Robert Alt have noted, any such waiver would violate 42 U.S.C. 615(a)(2)(B), which forbids waivers of the section of the welfare-reform law that contains the work requirements.
As the Heritage Foundation’s Robert Rector noted in The Washington Post, the Administration’s stated criteria for a waiver are so broad that they could “gut” the work requirement: A state could satisfy the administration’s criteria for a waiver by merely changing its recordkeeping practices, or, still worse, doing things that result in a “larger” welfare “caseload,” since larger caseloads result in more “employment exits” from welfare down the road. Independent experts have explained how the Obama administration has undermined welfare reform.
The Richmond Times-Dispatch explained how the Obama Administration undermined welfare reform in four successive editorials (see here, here, here, and here, in reverse chronological order). Mickey Kaus, who supported Obama in 2008, concurs here, here, and here, rebutting self-proclaimed fact-checkers who ignorantly claim that waivers wouldn’t undermine welfare reform.