Bill Clinton promotes welfare reform / The Washington Post

One of Mitt Romney's main attacks on President Obama has been that he is illegally gutting welfare reform's work requirement, and the House is set to pass legislation soon to block the administration's proposed waivers to the program. As I've consistently written, there's just no evidence that's going on. But I'm not a lawyer, so I couldn't say whether or not it's legal. But the Congressional Research Service staff are lawyers, and their conclusion (pdf) is that Obama's welfare policy is legal.

At issue is a letter acting assistant secretary for the Administration for Children and Families (ACF) at the Department of Health and Human Services (HHS) Gary Sheldon sent to states encouraging them to apply for waivers to experiment with different ways of promoting work through their welfare programs. The ideas included paying welfare checks directly through employers to encourage work, allowing welfare recipients to count job training programs, and so forth. Sheldon explicitly ruled out any waivers that undermined the welfare work requirement, writing, “The Secretary will not use her authority to allow use of TANF [Temporary Assistance to Needy Families] funds to provide assistance to individuals or families subject to the TANF prohibitions on assistance.” That is, people not eligible for welfare due to work requirements aren't going to be getting aid under the new regime.

But even if they don't undermine welfare reform, are waivers like this legal? That's an issue for courts to decide, relating to the technical interpretation of sections 402 and 407 of the welfare reform law. But CRS' Kathleen Swendiman concludes that in all likelihood, the Secretary of Health and Human Services (currently Kathleen Sebelius) has the power to waiver the relevant portions of that law.

"Section 1115 of the Social Security Act provides broad authority for the Secretary to consider and approve experiment, pilot, or demonstration projects which, in the Secretary's judgment, are likely to assist in promoting the objectives of the TANF program," the report concludes. Should the issue go to court, "there would appear to be a sound basis for the reviewing court to uphold the Secretary's interpretation that the provisions of Section 402, in so far as they incorporate the requirements in Section 407, are waivable under a TANF waiver demonstration project."

That's highly technical language, but the upshot is: The Congressional Research Service thinks courts will probably rule that Sebelius is acting legally if she approves waivers along the lines proposed.