What is it about the rule of law that doesn’t agree with Barack Obama? When he thought the Supreme Court might throw out his namesake, signature health reform, he (falsely) lamented it “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” But the president appears to have no compunctions about taking such a step himself.
Last month, it was a decision to partially stop applying immigration law. Yesterday, his administration neutered a key element of one of the signature moments from the Clinton administration: the 1996 welfare reform. As the Daily Caller’s Mickey Kaus puts it:
The guts of the 1996 welfare reform were a) welfare was ended as an “entitlement” (controlled by the feds) and transferred to the states, as a “block grant” subject to certain requirements; and b) one of those requirements was that a certain percentage of each state’s welfare caseload had to be working or preparing for work. A great deal of effort was put into defining what qualified as work, and making sure that work actually meant work and not the various BS activities (including BS training activities) the welfare bureaucracies often preferred to substitute for work.
Yet such training activities are exactly the kind of excuse the Obama administration is offering states that would like to waive the work-to-welfare portion of the welfare reform.
Whereas Chief Justice John Roberts went through legal contortions to keep Obamacare on the books, the administration is taking similar pains to remove this one. The Heritage Foundation’s Robert Rector, one of the key figures behind the welfare reform, explains that the administration can’t just waive the actual work-to-welfare requirement because the 1996 law (which includes the program in question known as TANF, or Temporary Assistance for Needy Families) does not allow that. Instead, the Department of Health and Human Services is cramming its rewrite of the law through an unrelated loophole known as Section 402 — the only section of the law subject to a waiver:
Section 402 describes state plans — reports that state governments must file to HHS describing the actions they will undertake to comply with the many 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 sections of the TANF law.
The new Obama dictate asserts 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; TANF becomes a blank slate that HHS bureaucrats and liberal state bureaucrats can rewrite at will.
Quite simply, this is illegal; Rector points to a clarification on this point from the Congressional Research Service back in 2001. We can only guess that, because all Obama’s promises apparently come with an expiration date, the president thinks others’ statements do, too.
Perhaps Obama was merely unaware that welfare reform passed by a much “strong[er] majority of a democratically elected Congress” than Obamacare did, and with much more bipartisan support to boot (including that of a senator at the time named Joe Biden).
Or perhaps Obama knows there would be scant support even among congressional Democrats for undoing the popular and effective welfare reforms — and sees no reason to trifle with the rule of law when it stands in the way of his aims.
– By Kyle Wingfield