In this election year’s frenzy of so-called “fact-checking”, we’ve been hearing a lot about the Obama administration’s recent maneuver regarding the 1996 welfare-reform law known as TANF (Temporary Assistance for Needy Families, part of the Social Security Act). In case you missed it, back in July, HHS secretary Sibelius issued a fiat declaring that the work requirements declared in Section 407 — which were pointedly, and deliberately, omitted from a list of waivable sections in the law (that enumeration is in Section 1115) — were actually, in clear defiance of the intentions of the law, waivable at the whim of HHS under some sort of “penumbra” emanating from Section 402.
Here’s the move, taken from Sibelius’s infamous memorandum:
Section 1115 authorizes waivers concerning section 402. Accordingly, other provisions of the TANF statute are not waivable. For example, the purposes of TANF are not waivable, because they are contained in section 401. The prohibitions on assistance are not waivable, because they are contained in section 408.
While the TANF work participation requirements are contained in section 407, section 402(a)(1)(A)(iii) requires that the state plan “[e]nsure that parents and caretakers receiving assistance under the program engage in work activities in accordance with section 407.’ Thus, HHS has authority to waive compliance with this 402 requirement and authorize a state to test approaches and methods other than those set forth in section 407, including definitions of work activities and engagement, specified limitations, verification procedures, and the calculation of participation rates. As described below, however, HHS will only consider approving waivers relating to the work participation requirements that make changes intended to lead to more effective means of meeting the work goals of TANF.
Needless to say, this brazen executive power-grab, which replaces a demanding and carefully enumerated set of work requirements with the personal caprice of Kathleen Sibelius, has elicited howls of outrage from folks on the Right who favor limited (or at least non-imperial) government. (Robert Rector fleshes out some of the details here and here.)
Well, the GAO has just weighed in, with an analysis of whether or not HHS overstepped its authority by issuing this diktat without consulting Congress. The answer is yes:
Accordingly, given our conclusions above, and in accordance with the provisions of 5 U.S.C. § 801(a)(1), the Information Memorandum is subject to the requirement that it be submitted to both Houses of Congress and the Comptroller General before it can take effect.
We’ll see where this goes from here.