Waiving at History

Aug 8 '12

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.