September 11,2012

Press Contact:

Julia Lawless, Antonia Ferrier, 202.224.4515

Hatch Delivers Remarks on Senate Resolution to Block Obama Administration’s Welfare Waiver Scheme

WASHINGTON – After introducing a resolution to block the Obama Administration’s attempt to waive bipartisan welfare work requirements, U.S. Senator Orrin Hatch (R-Utah), Ranking Member of the Senate Finance Committee, delivered the following remarks on Senate floor today:

Mr. President, I rise today to speak to an issue that threatens the very viability of the United States Senate.

Last July, the Obama administration using the flimsiest of arguments, granted themselves the authority to waive federal welfare work requirements.  Whether or not what the Obama Administration intends to accomplish with these waivers is good welfare policy has been the subject of a robust debate.

I am not here to argue the merits or lack thereof of the underlying welfare policy goals of the Obama Administration.  What I am here to do is to make a plea to my fellow Senators: as Senators we simply cannot let this action stand.

If we fail to stand together as Senators in defense of our Constitutional duty to be the ones to draft legislation, we might as well pack up our bag and go home, because we will have opened the door for this Administration and future Administrations to unilaterally decide they can waive precedent, Congressional intent, and actual legislative language that Senators have scrupulously debated and compromised on.

If we do not stand together as the United States Senate, we will be ceding our authority to the Executive Branch.  The longstanding implications of this could possibly extend to Welfare, Medicare, Medicaid, Disability Policy, Child Welfare and Social Security Programs.    Allow me to elaborate.

According to the Obama Administration, because Section 1115 of the Social Security Act allows them certain waiver authority over Section 402 of the Social Security Act, which deals with a state’s welfare, plan and Section 402, cites Section 407, then the Administration has waiver authority over Section 407, which enumerates state welfare work requirements.

Mr. President, this just doesn’t make any sense.  I have been a leader in the Senate on welfare for nearly two decades.  I helped draft and manage the floor during the 1996 overhaul of welfare. Five years later, I worked across the aisle with John Breaux from Louisiana and others to craft the so-called, “Tripartisan Proposal,” for welfare reauthorization. The Breaux-Hatch proposal became the basis for the Senate Finance Committee bill that was marked up in the summer of 2002.

Much of the work Senator Breaux and I accomplished made its way into the Personal Responsibility and Individual Development for Everyone – the so-called PRIDE bill that was reported twice out of the Senate Finance Committee.

In all that work on welfare, not once; not one time; not ever, was there any discussion of allowing states to waive state work requirements.  If anyone had raised it, Republican or Democrat they would have been laughed out of the room.  And for good reason. The crux of the deal and the most integral feature of the 1996 Act was to give states flexibility to design their own welfare programs, but require them to meet meaningful performance measures.  The idea that anyone would contemplate allowing states to waive these performance measures would have been preposterous, even ludicrous.

So, allowing the Executive Branch the authority to waive welfare work requirements has never, ever been a part of any discussion of welfare reform and since I have been a major part of every welfare reform discussion, I really would know if it had been.

The concept of the Executive Branch having the authority to waive the 1996 welfare work requirements also did not occur during the previous two Administrations.  It just never came up because no one thought it was possible.

The Administration likes to point to a 2005 letter from Governors in support of the PRIDE bill as justification for their unprecedented action.  But what they fail to note is that this letter was not sent to President Bush.  It was sent to Members of Congress who, the Governors correctly believed were the only ones with the Constitutional authority to give the states flexibility.

This point bears repeating:  until the July 12 Informational Memo to states, no one ever thought the Executive Branch could waive welfare work requirements. I would even venture to speculate that the Obama Administration ITSELF does not seriously think it had the authority to waive welfare work requirements.

Here is why I suspect that this is the case.  One of the few bipartisan bills that was actually enacted during the 112th session of Congress was legislation that I wrote with my partner on the Senate Finance Committee, Chairman Baucus.

This legislation, The Child and Family Services Innovation and Improvement Act included a provision that I drafted that allowed the Department of Health and Human Services the authority to grant certain child welfare waivers.  It specifically allowed HHS to waive provisions included in Section IV-E of the Social Security Act.  Congress gave HHS that authority because the Congress had been asked by states for flexibility to waive certain provisions of Section IV-E and because, just as everyone assumed the Executive Branch could not waive Section 407 of the Social Security Act, no one believed that they could waive Title IV-E of the Social Security Act.

But, Mr. President, if you go and look up Section 402, just as there is a reference to Section 407 contained within that section, so, too is there a reference to Title IV-E.  If the Administration really believes in their heart of hearts that they have carte blanche to waive whatever is even mentioned in Section 402, why did they have to wait around for Congress to give them that authority?  The answer, of course, is that they never had that authority to begin with and I believe even they know that to be true today.

But the real issue, Mr. President beyond the rhetoric is that if the Senate lets this action stand unchallenged; if the Senate does not speak as one body, united, then our inaction will embolden this Administration and future Administrations to bypass the Constitutionally mandated job of the Congress to enact laws whenever it suits their pleasure or political aims.

The Congress does not have many tools in our tool kit to thwart Administrative over-reach – but one of those few tools is the Congressional Review Act.  The C – R- A, as it is referred to, allows for Senate fast track authority to disapprove a rule that is submitted from an agency.

In the event that an Administration attempts to try and circumvent the CRA by issuing other forms of guidance that should have been submitted as a rule, the Government Accountability Office, which has standing with our Senate Parliamentarians can determine that an agency action meets the definition of a rule as established by the Administrative Procedures Act and that the therefore the CRA applies.

Last July, Chairman Dave Camp and I asked the GAO to determine whether or not the so-called guidance to states submitted by the Obama Administration was a rule, applicable to the CRA. Last week, Chairman Camp and I received word that the GAO had determined that the welfare waiver policy was in fact a rule and subject to the CRA.

This week both Chairman Camp and I will introduce Resolutions of Disapproval under the CRA for the Administration’s welfare waiver policies.  The House will mark up and pass their resolution this week.  The Senate can act, under fast track procedures which limit debate beginning the week of September 24th.

I have taken the floor today to ask that the Senate pass my Resolution of Disapproval on a unanimous vote.  It is imperative that we send the Executive Branch the unambiguous signal that the Senate’s ability to craft legislation – to do the work tasked to us by the Constitution will not be trifled with by this or any other Administration!

If the Senate does not speak with one unified voice on this issue, then I firmly believe we will have forfeited our relevance in future debates over Welfare, Medicare, Medicaid, Foster Care and Social Security.  If any Administration can capriciously deign themselves to have unlimited waiver authority over anything mentioned in provisions referred to in Section 1115, then the United States Senate is, for all intents and purposes, irrelevant.

Sure, we can have our debates, and develop our expertise and write our laws, but Colleagues that won’t mean a hill of beans  if an Administration can come along and just waive everything we’ve worked so hard to try and get right.

Colleagues and Friends, we just can’t let that happen.  I know many in this Chamber support President Obama.  I know also that many of these same Senators wish he had not taken this action.  But as Members of what I still believe is the greatest deliberative body, we have to put partisanship aside for the greater good of the Senate.

We have to send as strong a signal as possible that this Executive over-reach will not stand.  That no matter what our political persuasion, the United States Senate stands together and we will speak with one voice to say in no uncertain terms that we will not be ridden roughshod over, that our Constitutional rights as lawmakers will not be trampled on and that we will do everything within our power to preserve and defend these rights.

To that end, I urge Colleagues to support my efforts to stop this unprecedented Executive over-reach.  Support the Resolution to Disapprove.  Support the Senate. I thank the Chair and yield the floor.