First Principles

Last month, the Obama Administration issued an “Information Memorandum” that broadly reinterprets federal “welfare to work” programs, and encourages states to seek waivers of employment requirements for people on federally subsidized welfare benefits.  While the Memorandum claims that waivers won’t be granted if they violate the spirit of that welfare reform, the reinterpretation of the law claims the authority to do exactly that, effectively claiming an ability to do an end-run around duly passed legislation by royal decree executive fiat.

After being rightfully blasted for this attempt to undermine a successful and popular law by the Romney campaign, Barack Obama is now risibly claiming that Governor Brian Sandoval made him do it, or at least gave him the idea.

Hey, at least he’s taking a break from blaming George Bush for everything for awhile.

The trouble is that none of the Obama Administration’s claims or refutations are true.

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Congress only allowed a single section of the 1996 Welfare Reform law to be eligible for waivers.  That section, 402 (aka 42 U.S.C. §602), is limited to reporting requirements, including reporting compliance with employment requirements in another, (mostly) non-waiverable section (407).

The Obama Administration’s memo claims that because the employment requirements are referenced in the reporting requirements, and the reporting requirements can be waived, that this means that the employment requirements can ALSO be waived.  This is, of course, patently absurd.  The purpose of broad waiver authority for the reporting section was clearly intended to allow a reduction of administrative burdens, not to render the employment requirements optional or discretionary.

The section that allows certain waivers did provide a very limited option for states to “experiment” with improvements to various federal aid programs, most of which aren’t the TANF program Obama is talking about.  For the one section that does seem to reference the TANF work requirements, however, “did” seems to be the operative word – that section appears to at least partly predate the 1996 welfare reform that created the work requirements, and forbids such experiments after September 30, 1995.

Bottom line:  Obama is illegally claiming regulatory authority he does not have.  (Oh, for the days when liberals worried about the unbridled power of the executive!) Regardless of whether or not you agree with Obama’s policy goals (and believe it or not, I’m sympathetic to the idea that states should have more flexibility in these matters), this sort of lawlessness should be unacceptable to any American.

Either the Obama Administration knows this, is being intentionally misleading, and doesn’t care, or they have no idea what the law allows and doesn’t allow.  Neither option is particularly encouraging.

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Even if we take President Obama and his spokesmen at their words, and accept that they have have all the best intentions and will honor the plain intent of Welfare-to-Work, his legal interpretation gives him, or any subsequent federal bureaucrat, the ability to ignore the core of the law whether Congress likes it or not. That’s why even the most sincerely well-intentioned liberal who just thinks that the world would be so much better if only the right people had a little more power is so dangerous.  The wise statesmen understands that he shouldn’t be allowed any more power than he would want his worst political enemy to have.

But since Obama was one of like six people in the entire country who actually opposed welfare reform back when it was passing, let’s just say I’m not impressed with his claimed dedication to the spirit of expecting people to work their way off of government assistance.

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So what about Governor Sandoval?  Well, it turns out that he never sought a waiver in the first place.  His administration did send a letter to the feds last year with some policy proposals, but only in response to the Obama Administration’s request for some policy brainstorming in the future.  To suggest that HHS’s new claimed waiver authority was granted in specific response to a request from Governor Sandoval is just false.  No waiver was ever sought, and I’ll take the Governor at his word that none is currently planned.

Moreover, Obama’s policy memo refers almost exclusively to easing work requirements, while Sandoval’s letter discussed all kinds of potential administrative burden reductions that are totally unaddressed by that memo.  If this radical new policy was merely in response to Governor Sandoval, one would think it would, you know, be responsive to what the Sandoval Administration actually proposed.

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But wait!  Obama also claims that Romney, while Governor of Massachusetts, also requested the “same” type of waiver HHS has now authorized!  Except that’s not true, either.  The Republican Governor’s Association sent a letter, which Romney signed, not to the President or to HHS, but to then-Senate Majority Leader Bill Frist.  The letter is urging legislative solutions, not executive ones, and while it does request less centralized federal government control, it doesn’t ask that the Secretary of Health and Human Services be allowed unfettered authority to ignore any statutory work requirements, which is what Obama’s Policy Memo would, in fact, allow.

And in fact, when the Massachusetts legislature attempted to dilute work requirements for welfare beneficiaries, Romney vetoed that bill.  Does any serious person think Obama would have done the same?

As I said before, I’m sympathetic to the idea that States should be more free to come up with their own solutions to their welfare problems.  But process matters.  Amending statutes via the Constitutionally mandated legislative process is the right way, and that’s what the RGA letter was proposing.  Setting up a system where Governors must come begging for favors from an unelected and totally unaccountable federal bureaucrat is something else entirely, and that’s what Romney is now rightly opposing.

Not for the first time do I hope Obama’s Constitutional Law students at Chicago were able to get their money back.

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Still, the real problem that this little brouhaha actually highlights has gone largely undiscussed:

Why in the hell is the Federal Government involved in the minutia of state welfare regulation in the first place?  (Or of education policy?  Or health care policy?)

Don’t get me wrong – I’m in favor of incentivizing welfare recipients to get back to work, and the 1996 federal rules were a vast improvement over the previous federal rules.  But why do we need to send our money to Washington to be laundered and strained and skimmed through layer after layer of federal bureaucracy, just so we can beg for it back with strings attached as if the Feds are doing us a favor?  Wouldn’t we be better off just implementing similar rules, but ones more appropriately tailored for our unique economic environment, at the state level?  We’d have a lot more money to work with, and a lot more flexibility with which to spend it.

That’s especially true in Nevada, where we’re one of the most “generous” “donor states” in terms of our ratio of money sent to DC versus money returned to our state.

Man – if only we had, like, a really powerful Senator or something who could do something about that.

If the feds have to be involved at all, I certainly prefer the Romney approach (statutory authority and strict employment requirements) versus the Obama approach (extra-legal and unaccountable rulemakers and toothless standards for receiving benefits).  But we aren’t going to solve our fiscal problems long term until the federal government sticks to what it’s supposed to do and not more, and tax dollars stay here in our own state without a cross country round trip that strips 35% of its worth before we can make good use of it.