In a memo to Ways and Means Committee Ranking Member Sander Levin (D-MI), the American Law Division of the Congressional Research Service (CRS) refutes the two main arguments Republicans have made in questioning the authority of the Secretary of Health and Human Services to allow States to implement demonstration projects under the Temporary Assistance for Needy Families (TANF) program. The CRS review finds that dozens of waivers for demonstration projects have been approved in the past when their subject matter has been referenced in Section 402 of the Social Security Act (just as the Secretary currently proposes), and that there is nothing in the law that specifically bars the Secretary from providing waivers related to employment. The CRS review is attached and is available here.
Ranking Member Levin responded, "You need a full-time fact checker to review all of the misrepresentations and flat-out falsehoods that Republicans are spreading. Independent analyses have found Republican claims about the Administration somehow eliminating work requirements to be "pants on fire' false and "four Pinocchios' dishonest. The fact is any waiver must be designed to increase the employment of welfare recipients. Now we hear their claim the Administration doesn't have the authority to provide waivers also is more fiction than fact."
In a letter from over 75 House Republicans questioning the Secretary's authority to provide employment-related waivers in the TANF program, Republicans asserted that "Section 1115 of the Social Security Act only provides the waiver if that section is listed...[and therefore] "waivers simply do not apply." However, the CRS review disputes that interpretation of the Secretary's authority, stating "the Secretary's interpretation of her current authority under Section 1115 with regard to waivable TANF provisions under section 402 appears consistent with the Secretary's practice under the same provision as it existed under the AFDC program." The CRS memo highlights the fact that over 50 demonstration projects were permitted in the 1990s using the same presumption used by the Secretary of HHS today -- she may waive provisions outside of Section 402 that are referenced in Section 402 (which outlines state plan requirements under the TANF program).
Republicans also have asserted that a section of the Social Security Act prevents waivers for demonstration projects related to employment. In a letter to Secretary Sebelius, Congressman Camp and Senator Hatch said "the law specified that waivers granted subsequent to TANF's passage could not affect the applicability of work requirements to States." However, CRS refutes this view, saying the provision of law cited by Republicans does "not appear to pose a bar to the Secretary's current exercise of authority under Section 1115 to approve an experimental, pilot, or demonstration project." CRS concludes that the limitation referenced by Republicans was a "transitional provision" affecting only the continuation of waivers under the former AFDC program.