Waiving at History

by Andrew Rudalevige on August 8, 2012 · 6 comments

in Bureaucracy,Presidency

Recent weeks have seen a series of attacks on the Obama administration’s use of waivers to exempt states from the provisions of federal law. Most prominent until now had been Education Secretary Arne Duncan’s issuance of waivers to the No Child Left Behind Law. Yesterday, though, Mitt Romney accused the Obama administration of seeking to remove the work requirements from the 1996 welfare reform law (TANF, Temporary Aid to Needy Families) by waiver. More excitable sites exclaim things like “Obama guts welfare reform with executive order!” 

Just to be accurate, there is no “executive order” actually in play here – this is a term which refers to a specific form of presidential directive. (See Ken Mayer’s book on the topic, or link to the most recent such orders issued.) It is also different from the immigration order granting deportation exceptions, which was conceived as a prioritization of resources under extant law rather than as a ‘waiver’ per se. Instead, the welfare issue stems from a mid-July guidance letter issued by the Department of Health and Human Services which notes the department’s interest in “encouraging states to consider new, more effective ways to meet the goals of TANF, particularly helping parents successfully prepare for, find, and retain employment…. HHS is issuing this information memorandum to notify states of the Secretary’s willingness to exercise her waiver authority under section 1115 of the Social Security Act to allow states to test alternative and innovative strategies, policies, and procedures that are designed to improve employment outcomes for needy families.” As this suggests, waivers are driven by discretionary power within the statute itself, normally vested in the departmental secretary rather than the president directly. (Though presidents should hope that their departmental secretaries care what they think on such matters.)

It is at the least premature to suggest the present bureaucratic blandness amounts to “gutting” employment requirements under TANF, unless “effective” and “outcomes” are defined in particularly sinister ways down the road. For its part the White House says this line of attack is “blatantly dishonest” and promptly released a 2005 letter from Republican governors asking that TANF reauthorization contain “increased waiver authority.”

Surely, surely, surely it is only a coincidence that Governor Romney was a signatory to that letter. Still, there is a long history of waivers to welfare requirements, as the states take up their “laboratories of democracy” mantle and experiment with different mechanisms for achieving policy goals. See, for instance, the archival memo below (click on it for a better view) from Reagan attorney general Ed Meese, reporting a 1988 presidential decision to (a) support only welfare reform legislation that enhanced the president’s ability to grant more waivers, and (b)  set a goal that half of all the states would receive waivers from federal welfare requirements. Traditionally, of course, Republicans favored more waiver authority, not less, while Democrats were nervous about what states might evade given such autonomy.



In the case of No Child Left Behind, the authority to waive provisions of the law is vested in the Secretary by Section 9401 (“Part D – Waivers”). Waivers can be granted, at a state’s request, if it can show that the waivers will “(i) increase the quality of instruction for students; and (ii) improve the academic achievement of students.”  In a subsection some portions of NCLB are exempted from the possiblity of waiver – including for instance civil rights requirements, maintenance of effort (to prevent states from making up their own funding cuts with NCLB money), and the NCLB’s funding formulae.  But the big-ticket, indeed titular, item—that all students become “proficient” in math and reading by 2014—is not listed there. Thus, in exchange for various policy commitments at the state level, things that the Obama administration thinks will increase the quality of instruction for students and improve their academic achievement, the Ed Department has the authority to waive that burden. So far more than half of all states have sought to do so – Governing magazine provides a useful map here.

Waivers certainly provide a given administration with flexibility under what are normally broad statutes where it is difficult to foresee in advance how implementation might play out. (Indeed, Congress presumably did not foresee, in the heady days of 2001, that it would be more than five years late in reauthorizing the Elementary and Secondary Education Act.)  Whether they enhance, gut, or simply modify is usually in the eye of the beholder – and whether that beholder likes the policy change in question.  Romney himself says he would repeal “Obamacare” on “Day 1”, which in the absence of legislative majorities therefor would presumably include the issuance of waivers to states chafing at the Affordable Care Act’s provisions. Is the issue waivers, then? – or what is waived?



PS - a h/t to Jeff Jenkins of UVa for suggesting a post on this topic.


Werner August 9, 2012 at 7:28 am

So your point here is that lots of Presidents modify Federal Law thru waivers & discretionary enforcement — so why pick on Obama (?) A trivial but reasonable point in itself.

However, the important issue here is why any President is permitted to modify any Federal Law in any manner… or create laws thru “Executive Orders”, executive branch ‘regulations’, etc. His job is to honestly execute Federal Laws constructed by Congress — not to interpret them or modify their application to his liking. That’s the rule-of-law under the Constitution: All federal legislative powers rest within the U.S. Congress — none reside with the President.

Federal Law requires express approval by both the Congress and the President. But if this process results in specific law that is too vague or confusing to apply in practice — then the sitting President’s only Constitutional option is to set that law aside and not apply/enforce it at all. He can ask Congress to modify the questionable legislation — but he can’t legally do it himself, in any manner.

A Chief Executive who can modify the law by himself (directly or indirectly) is a King/Dictator. America is surprisingly close to that situation now with both Republicans and Democrats eagerly embracing it.

Rosmarster August 9, 2012 at 9:53 am

Werner, I think you missed the part in the original post that says the authority to give waivers is written into some laws themselves.

RobC August 9, 2012 at 10:03 am

Mickey Kaus notes that the increased waiver authority that the Republican governors asked to be enacted in 2005 never was enacted. Surely, surely, surely that’s relevant to whether the Administration’s action is the same thing sought by the governors and, if so, whether there is adequate statutory authority for the waivers the Administration is proposing.

Andrew Rudalevige August 9, 2012 at 12:19 pm

Thanks for the comment. You are absolutely right to ask whether the text of TANF allows for waiving the work requirements structured in the law; as my discussion of NCLB shows, Congress may choose to exempt portions of any law (or the whole law, for that matter) from departmental waiver.

So, we have to turn to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Section 415 (“Waivers”) has a subsection which in my reading seems to ensure that waivers cannot disrupt recipient work participation requirements set in Section 407 of the law. (Perhaps those waivers can modify what *counts* as “work”. I’m not sure. Input from my social policy colleagues would be welcome on this point.)

If TANF *does* prohibit such waivers, they cannot be approved in the first place (Full stop. More on the ‘rule of law’ in another comment below). The administration, of course, says this is moot since it has no intention of weakening the work requirements. I suppose the proof is in the pudding but the HHS document in itself does not seem to presage a vast left-wing conspiracy.

Does it matter that the ’05 changes pushed by the Republican Governors’ Association were not enacted? The political point is that then-Governor Romney thought giving more waivers was a good idea. And surely, surely politics trumps substance in this particular debate!

Werner August 9, 2012 at 11:14 am

” Werner, I think you missed the part in the original post that says the authority to give waivers is written into some laws themselves. ” — Rosmarster


No. The original post missed the fundamentals of Constitutional rule-of-law.

The point, again, is Article I, Section 1:
All legislative powers herein granted shall be vested in
a Congress of the United States, which shall consist of a Senate and House of Representatives.

Only Congress can issue waivers, via its original or modified legislation.

Congress can not ‘delegate’ its “legislative authority” to a President, SCOTUS, state governments, the FCC, Mayor Bloomberg, Angelina Jolie, or anybody else.

If one wishes to ignore basic U.S. rule-of-law to achieve pragmatic political objectives… that rule-of-law ceases to exist.
That’s almost where America is today. Establishment Republicans & Democrats seem quite happy with this situation.

Andrew Rudalevige August 9, 2012 at 12:40 pm

Thanks for the close read. I’m a bit bemused to find myself accused of ignorance, or perhaps only of neglect, of the importance of the rule of law. I think you’ll find my book _The New Imperial Presidency_ to your liking on that point.

But neither do I think the existence of waiver authority (or of executive orders, or of regulations — these are all different things, administratively) threatens the Constitution or the rule of law. Without recapitulating the large public administration literature on shared powers, I would note only that there may be good reasons for Congress to authorize administrative discretion with regard to interpretation of complicated statute. Most basically, of course, in our system it is difficult to pass laws (the present Congress seems to find it nearly impossible); circumstances can change rapidly; and there is a positive value placed on federalism and state-to-state differences which may require deviation from a ‘one size fits all’ mandate.

As I noted, these waiver authorities are granted in statute by Congress to departments (not to the President directly; and departments can in theory ignore presidential preferences in these matters). You are right of course that Congress cannot delegate purely legislative powers; Cornelius Kerwin’s book on regulation is a good introduction to the middle ground of executive-driven rulemaking. As Dick Neustadt put it, we do not have a pure separation-of-powers system – we have separated institutions sharing powers. As a result presidents, who have an admittedly sparse constitutional hand, find it harder to “control” the bureaucracy than recent rhetoric suggests.

Is it possible for presidents to overplay that hand, and seek to amend the law in the guise of interpreting it? Absolutely. But I’m unwilling to say that all executive interpretations of statute are illegitimate.

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