But the Obama administration has jettisoned the law’s work requirements, asserting that, in the future, no state will be required to follow them. In place of the legislated work requirements, the administration has stated, it will unilaterally design its own “work” systems without congressional involvement or consent. Any state will be free to follow the new Obama requirements “in lieu of” the written statute.
The administration has provided no historical evidence showing that Congress intended to grant the Department of Health and Human Services (HHS) or any part of the executive branch the authority to waive the TANF work requirements. The historical record is clear and states the opposite; as the summary of the reform prepared by Congress shortly after enactment plainly says: “Waivers granted after the date of enactment may not override provisions of the TANF law that concern mandatory work requirements.”
The members of Congress closely involved in drafting this law have asserted that Obama’s action contradicts the letter and intent of the statute. For 15 years after welfare reform was enacted, no waivers of work requirements were issued by HHS. No such waivers were discussed because it was clear to all that Congress had never provided the department with such waiver authority.
What is it that the administration’s July guidance suddenly seeks to change? At the core of the 1996 law are “participation rate requirements” that ensure that 30 to 40 percent of able-bodied TANF recipients must engage in any of 12 different “work activities” for 20 to 30 hours per week. The administration would exempt states from this requirement and encourage them to operate under alternative performance measures. For example, HHS Secretary Kathleen Sebelius has said that to bypass federal workfare requirements, a state would have to “move at least 20 percent more people from welfare to work compared to the state’s past performance.”
At first blush, a 20 percent increase in “employment exits” sounds impressive. But what does it mean? In the typical state, about 1.5 percent of the TANF caseload leaves the rolls each month because of employment. To be exempt from the federal work requirement, a state would have to raise that number to about 1.8 percent of caseload. This is a minuscule change; as the economy improves, this small increase will occur automatically in most states. Moreover, states keep imperfect employment records of those leaving TANF; many states could easily achieve the required increase through modest improvements in recordkeeping alone.