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  • Obama's Gutting of Welfare Reform Is Illegal

    The Department of Health and Human Services (HHS) has a General Counsel and legal staff to ensure that the agency’s actions are lawful. Did they take the day off last Thursday?

    We have to question whether the department lawyers were consulted at all about the “Information Memorandum” issued by HHS last Thursday that invites states to come up with creative excuses (aka “demonstration projects”) to suspend the work requirements in the welfare reform law.

    Given the clear, unambiguous, and binding legal prohibition for that type of waiver, if they were consulted, the lawyers involved were embarrassingly careless in approving language that is in direct violation of federal law. Because there is no legal basis for permitting the waivers at issue, HHS needs to follow the law and withdraw the illegal Memorandum.

    Last Thursday, our colleagues Robert Rector and Kiki Bradley were among the first to expose the Obama Administration’s plan—through the HHS Memorandum—to gut the work requirement that was an essential foundation of the landmark welfare reform law of 1996. They explained one reason why the waiver authority cited by HHS does not allow the Secretary to waive the key work requirements. It turns out there is an even clearer, and express, legal prohibition in the 1996 statute against what HHS seems to want to do.

    In short, the HHS action that would be highly questionable when you read the authorities cited by HHS becomes completely indefensible when you examine all the relevant law.

    As Rector and Bradley noted, the waiver authority cited in the HHS Memorandum only authorizes the Secretary of HHS to suspend certain reporting requirements under the Temporary Assistance for Needy Families (TANF) law, not the underlying work requirements in section 407 of the act, now codified in 42 U.S.C. § 607. The HHS Memorandum advances the flimsy argument that:

    While the TANF work participation requirements are contained in section 407 [now section 607 of the code], section 402(a)(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.

    Rector and Bradley correctly argued that the best way to read these different provisions is that the Secretary’s power to waive state reporting requirements should not be read to permit the Secretary to do what the waiver provision does not authorize and indeed forbids by implication: waiving the substantive work requirements of another section.

    But there is an even more pointed reason to come to the same conclusion: Federal law expressly prohibits the Secretary from waiving the work requirements!

    Section 415(a)(2)(B) of the welfare reform act, now codified at 42 U.S.C. § 615(a)(2)(B), expressly states that “a waiver granted under section 1315 of this title [the one that HHS now claims it is acting under] or otherwise which relates to the provision of assistance under a State program funded under this part (as in effect on September 30, 1996) shall not affect the applicability of section 607 of this title [which applies the work requirements] to the State.” In short, whatever else might be said of the scope of the waiver authority, the Secretary has no lawful authority to waive the work requirements of section 607, which is what HHS is contemplating in its Memorandum.

    On the same day the HHS Memorandum was issued, House Ways and Means Chairman Dave Camp (R–MI) and Senate Finance Committee Ranking Member Orrin Hatch (R–UT) sent a pointed letter to HHS Secretary Sebelius asking for the department’s legal reasoning by the end of today (Monday), stating that they “believe [HHS's position] is deeply flawed and specifically contradicted by TANF and related statutory language.” A source from the Finance Committee indicated that as of the time of this writing, the Secretary has not yet acknowledged their request.

    Some sort of explanation is obviously needed. The statutory language here is so clear that it is difficult to imagine how HHS could justify the language of the Memorandum or its primary object. The least painful approach for the department is to retract the Memorandum. An explicit confession of error would be nice, but an implicit acknowledgement is all that is necessary. But whatever the explanation, HHS needs to follow the law and withdraw the illegal Memorandum.

    Posted in Legal [slideshow_deploy]

    33 Responses to Obama's Gutting of Welfare Reform Is Illegal

    1. Bobbie says:

      What awesome work you guys do!! I'm speechless!!??
      …except we have to throw people out who disrespect their positions of authority respectfully given them they abuse in contrast to their expectations to be respectfully compliant to their duty!! I'd like an amendment that will dismiss this conduct in a matter of time not allowing dishonorable presence to continue undisciplined behavior until the next election!! Great job Heritage!! okay, I'm speechless again!

    2. charmin62 says:

      Obama has gone around, over, under and through the law several times already. What is to stop him from doing it again? He seems to have diplomatic immunity.

      • Herbert Vroegindewey says:

        I hope at least some of the laws Obama has broken are prosecutable after he's out of office. It's a shame nobody seems able to do anything about it now.

        • Bill Giordano says:

          He gets an affirmative action pass. Everyone knows it would be racist to impeach a (half) black president.

    3. Carol, AZ says:

      More disgusting duality of incompetence by the waiver system, EX orders, and gutting every law, in the way, by the Kenyan King and his followers.
      This recent agenda will help to support a sub-class of Govt breast feed adults, their litters, give free medical care, and ask for NO accountability. Slick Willie is creating his own sub-class of White House house pets and Michelle can teach them to grow their own food.
      If you expect Bo to greet you at Wal-Mart to help pay his way, he's frankly to inexperience for that job.
      He and Michelle won't be practicing law either: Harvard isn't talking, Columbia isn't talking, but more fairy dust is coming from Disney World and the zoo speak goes on and on.
      What did you expect?

      • abby says:

        Thank you Carol, I am so frustrated with the daily violations of our constitution that my blood pressure continues to rise. Will there be anything left after the boy king and queen of vacation wife leave the "peoples"
        house–I fear that we are in for another four years because of Holder's so called voter disenfranchise garbage. Almost every minority I see has a phone, a drivers license, etc. They have to have ID because they are standing in line for food stamps, don't they? —–. the boy king applied to Occidental as a Muslim.
        This whole presidency was planned over twenty years ago by the progressives. I am insulted, dismayed and shocked that so many people still sit in the seats behind him when he speaks. Is America I grew up in gone?

    4. rabbit says:

      Now taking bets that they won't apologize or back down. This administration could care less about the Legislative branch or the law. They've demonstrated that time and again. Unfortunately absolutely no one in Congress or the Senate has enough backbone to uphold their oath to the Country and refuse to stand up to the Executive branch's lawlessness.

      • Carol, AZ says:

        Yes: You see it clearly:
        We see it clearer here. For us , It's about saving American lives and protecting our brethren.
        We can't wait for these elected idiots to protect us here. We've had targets on our backs from day one.
        The money dumped into American banking (daily) IS the stimulus in Buss you haven't heard about there. This is the impetus behind all these decisions, period. From day one the White House, and all agencies sworn to protect us left us twisting in, legal lawsuits and loopholes to ensure lawlessness.
        Certainly you must also know that cartel operatives that live here with dual citizenship and others illegally for years , are being protected.
        The spill-over reported last weekend, 20 bodies were stacked up in Chicago, where the death rate has risen 39% in one year from gang warfare is just one ex.
        One brave law enforcer also added: "the MX cartels has taken over our city."
        Gee what a coincidence, to have collateral damage in a war declared on your own citizens.
        Now do we all fully understand the meaning of ,"Class Warfare "Obama style?

    5. SnoBurd says:

      Once again, the Obama administration circumvents the Constitution. This man-child needs to be brought up on charges and impeached.

    6. @thinkpad30 says:

      You forget that HHS is a dept. under oblamer, and as such, any law is meaningless. If he won't obey the supreme law of the land (the Constitution), why should he obey some piddly-ass HHS law?He doesn't obey the law that demands he defend our borders, or "protect and defend from all enemies, foreign and domestic". But then, he has a Constitutional right to not defend against at least one domestic enemy, because the fifth amendment protects him from incriminating himself. If he is re-elected, we will need to refer to him by another name. It hasn't been announced by him yet what it will be. Maybe it will be il duce (Italian for dictator), king, The One, Most High and Exalted Ruler, or Oh Fearless Killer of bin Laden. Personally, I think he will go the humble (for him) route and be simple – God, or rather Allah.

      • Clearhead says:

        How about "MR. USED TO BE IN POLITICS? Or better yet — "MR. USED TO LIVE IN AMERICA"

    7. Jerry says:

      Another example of Obama looking to get votes. First he issued an executive order to stop deporting illegal aliens. This was obviously to cater to the Hispanic vote. Now to garner votes from the unemployed he decides to eliminate the "work requirement" for welfare recipients. What executive order will he issue next to supercede the rule of law?

    8. Bete says:

      Will we survive until Nov. ? I have serious doubts.

    9. Cathy Earle says:

      When are the counts of treason going to be levied against this administration? They keep getting away with the destruction of our U.S. Constitution, why? Where is the FBI, the CIA, the Secret Service? When is there going to be investigations into Congress, the White House, the Judiciary? When the hell is this demolition of our rights and freedoms going to cease? God help us!

      • Jeanne Stotler says:

        You have to be kidding, He carefuly choose his cronies to head these, FBI< Secret Service are under Justice Dept. and the CIA is in his hand. Under another administratin, a Special prosecutor can be ordered to look into this mess and then charges can be brought against the whole bunch.

    10. Lloyd Scallan says:

      "Illegal"! Since when has that word stopped Obama?

    11. Stewart says:

      Every day is more discouraging than the one before. Has there ever been a more devious and despicable person in the White House? I hope the scope of his evil doings will be exposed before he "fundamentally changes" us into to a country we no longer recognize.

    12. Jim says:

      I am all for a change in leadership but unless we are just as Speechless when the 1.2 trillion cuts Don't happen come January 2013 will you be mad or happy? Unless we cut Everything it won't matter if we get rid of Obama.

    13. This-is-not-a-drill says:

      Will someone please do something to stop Obama? All congress does is talk and look for their talking points on FOX, ABC, BBC, CBX and MSNBC. Obama and Holder have made congress look silly and shown us all how weak they are. Boehner’s leadership is pathetic. Why has Obama been allowed to get away this unprecedented abuse of power? PLEASE SOMEONE DO SOMETHING SOON, VERY SOON!

      • O2BMe says:

        Because the House can't get anything past the Senate. They won't bring any bill to the floor to even discuss.

    14. Sanford Olnhausen says:

      Our last hope! Vote Nov 6th!

    15. JIMOFCT says:

      iF THIS MEMORANDUM IS NOT WITHDRAWN OR SOME "JUSTIFICATION" IS CLAIMED TO AUTHORIZE A WAIVER OF THE "WORKFARE ASPECTS" OF THIS LAW ANOTHER OF OBAMA'S CABINET MEMBER'S WILL NEED TO BE SUBJECT TO A "contempt of congress " ACTION.
      EVEN THOUGH HOPEFULLY OBAMA ONLY HAS 6 MORE MONTHS AS PRESIDENT – LEGAL STEPS TO HOLD HIM ACCOUNTABLE FOR HIS ILLEGAL ACTIONS AS PRESIDENT IN VIOLATION OF THE CONSTITUTION HE SWORE TO "PROTECT AND DEFEND" SHOULD BE MADE ONGOING EVEN AFTER HE LEAVES OFFICE.
      WE SHOULD NOT ALLOW HIM THE FORTUNE HE CAN MAKE AS A PAST PRESIDENT WITHOUT HOLDING HI8M ACCOUNTABLE FOR THE DAMAGE HE HAS DONE.

    16. Pat C says:

      So when does congress go after Sebelius for contempt? …..crickets…..

      That week weenied weasel Boehner won't do it. He might be called a bad name.

    17. Jeanne Stotler says:

      He, BHO, is a tyrant, he will try somthing to stay in the WH, even if he loses the election, I predict there will be Marshall law and you'll find out anyone who opposes BHO will be jailed if not killed. This man??, believe the junk he preaches, he is just like Chavez, Castro and the other Marxist, communist. He should be arrested as soon as a new congress and POTUS are sworn in and charged with TREASON, and any other charges showing he did not uphols the oath as POTUS

    18. Blair Franconia, NH says:

      Yes, it is.

    19. nanblan says:

      It should be added to the growing list of Obama's illegal actions. Lawyers should be closely scrutinizing all actions he's taking that circumvent Congress and the Constitution, especially those designed to help him win support with certain demographics for the upcoming election (e.g., his "Dream Act, with the obvious purpose maintaining and gaining essential Latino votes.) The courts will have to be the remedy, because as soon as a lawsuit is filed against him, he counteracts with his own suit. This is largely done to delay by tying up court proceedings until after the election. Even with the courts, however, he's outright ignored rulings against him, such as lifting the moratorium on oil drilling in the gulf. He's simply ignored it, and, in fact, has filed a second lawsuit. The arrogance is stunning.
      This man is extremely sneaky, and appears to think he can break any laws to get what he wants. Hopefully, enough citizens will realize the danger of his authoritarian methods, and vote to throw him out of office in November. If not, God help us all.

    20. Mike, Wichita Falls says:

      Consider this fine print: Section 402(a)(a)(1)(A)(iii), Section 415(a)(2)(B), 42 U.S.C. § 615(a)(2)(B). One section references another and on and on. Like I heard a Congressman once say…you need a lawyer to figure it out.

      And the President has the nerve to tell us about the evil credit card and insurance company's fine print!

    21. DockyWocky says:

      Back in the olden days, when our government's justice system had folks with cajones, malfeasance and/or misfeasance of the kind Obama engages in at his leisure was a real charge that could get a perp excoriated and fired – often worse. Unfortunately, when a crooked conspiratorial president is free to slide a crooked Attorney General into the seat as the nation's top cop, things that got others sent to the hoosegow are now glossed over and not pursued with any gusto at all.

    22. DockyWocky says:

      "Your comment must be approved by the site admins before it will appear publicly"

      I guess I can't call Obama and Holder crooks.

    23. 14theroad says:

      The Sergeant at Arms of the United States House of Representatives should have been ordered to arrest and hold Kathleen Sebelius and Eric Holder for breaking. After they are done talking, arrest the President for treason. In this case, the constitutional crisis would be a good thing.

    24. Ted says:

      I fail to see how this 'waiver' which is not a waiver 'Guts Welfare to Work' requirements. If it is illegal and so terrible, perhaps Mitt Romney should not have been among the republican governors requesting it. http://www.huffingtonpost.com/2012/08/27/mitt-rom

    25. David Lelyveld says:

      Read the law and the so-called "waiver" issued on July 12: http://www.acf.hhs.gov/programs/ofa/policy/im-ofa

      The action is clearly legal, but that is up to the courts. Whether it is wise or not is a matter of policy debate, but so-called "conservatives" have generally favored the reduction of federal interference with state decisions, as in the recent Supreme Court decision on Obamacare. In this case, the request for "flexibiilty" came from two Republican governors of Utah and Arizona.

    26. Evelyn corp says:

      I love The Heritage Network and want to keep it!

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