Obama-administration Repeal of Welfare Work Requirement Unconstitutional?

August 9, 2012

Andrew M. Grossman and Robert Rector at National Review Online say that the Obama administration’s recent decision to repeal, by executive fiat, the core of the welfare reform of 1996 (the work requirement) is illegal:

Section 407 establishes stand-alone work requirements for state welfare plans that brook no exceptions. And Section 407 is absent from the list of sections that the HHS secretary does have the authority to waive. That alone proves that Sebelius lacks any authority to waive the work requirements.

Indeed, Section 407 shows that Congress was concerned that HHS or states would attempt to evade the law’s strict work requirements. To prevent backsliding, Congress legislated in great detail, defining terms with specificity and setting hard caps on exemptions.

. . .

In fact, the Obama administration’s interpretation, even if accepted by a court, actually is fatal to its waiver argument. It concedes that Congress allowed states obtaining waivers in the interim period after the 1996 law’s passage to ignore every single new requirement in the law except for the work requirements contained in Section 407, which states were required to implement immediately.

4 Responses to “Obama-administration Repeal of Welfare Work Requirement Unconstitutional?”

  1. Snoodickle Says:


    Unconstitutional or not, shouldn’t a states’ rights conservative be in favor of giving states more flexibility in meeting the work-requirements of the federal welfare statute?

    • No, he would say that it is unconstitutional for the federal government to have entitlement programs at all, and certainly inappropriate for there to be programs in which (giving states the benefit of the doubt) the federal government commandeers state governments or in which (not giving the states the benefit of the doubt) the states collude in a combined federal-state big-government scheme that leaves voters unable to tell which bums to throw out if they don’t like the program. If we’re going to have such a program at all, the president should respect the Constitution and enforce the statute as written, not rewrite it from the executive branch.

      Despite Fact Check’s attempts to play games with the words, Romney’s ad is essentially true. Even it and its source Mr. Haskins (who both he and it are at pains to assure us is credible—“now remember I’m a Republican”!) admit that “Republicans at the time drafted the welfare law so that the executive branch could not waive work-participation rules”—i.e., President Obama has violated the statute.

      Fact Check also fails to mention the highly relevant fact that in 1996, then-state-senator Barack Obama publicly opposed the 1996 welfare reform. The fact that Fact Check didn’t manage to mention that, even after the Romney campaign itself had pointed it out, shows that Fact Check either did a bad job or was deliberately trying to slant its presentation in Obama’s favor.

      • Snoodickle Says:

        So you condemn every executive action ever taken that is inconsistent with a federal statute? That is noble indeed. I will hold you to your word henceforth.

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