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GAO Clears Way for Congressional Votes on Disputed Welfare Waivers

The Government Accountability Office has issued a ruling on the Obama Administration’s offer of waivers on the welfare program, which Republicans have falsely claimed would “end the work requirement for welfare.” The GAO ruling could lead to a Congressional up-or-down vote on the rule change, and may even force President Obama into an uncomfortable position of issuing a veto to save the waivers.

Orrin Hatch, the ranking member of the Senate Finance Committee, and Dave Camp, the Chairman of the House Ways and Means Committee, asked GAO about the waiver grant from the Health and Human Services Department to states who seek more flexibility in administering their welfare programs (known as Temporary Assistance for Needy Families, or TANF). Specifically, they wanted to know if it fell under the auspices of the Congressional Review Act, a Gingrich-era law that allows for Congressional oversight for eligible regulations.

GAO ruled that it did qualify.

In a legal opinion requested by Senator Orrin Hatch, Ranking Minority Member of the Senate Committee on Finance and Representative Dave Camp, Chairman of the House Committee on Ways and Means, the GAO General Counsel’s Office determined that the Department of Health and Human Services’ recent memo making changes to operation of the Temporary Assistance for Needy Families (TANF) program constitutes a rule for purposes of the Congressional Review Act (CRA). Under the CRA, the rule must be submitted to both Houses of Congress before it can take effect.

The CRA is intended to keep Congress informed of the rulemaking activities of federal agencies and provides that before a rule can take effect, the agency must submit the rule to each House of Congress and the Comptroller General, head of the GAO. GAO concluded that the Information Memorandum issued by HHS is a statement of general applicability and future effect, designed to implement, interpret, or prescribe law or policy with regard to TANF and is a rule under the Congressional Review Act. Therefore, under the CRA, it must be submitted to both Houses of Congress before it can take effect.

“Submitted to both Houses of Congress” means that they simply get a letter informing them of the changes; the rule could not take effect until receipt. But here’s where things get interesting. Under the Congressional Review Act, the House and the Senate can schedule a joint resolution to “review” the regulation in question, and if it passes both houses, the regulation gets overruled. However, the President would have the opportunity to veto the joint resolution.

Hatch and Camp would not have asked this question, I don’t believe if they didn’t plan to submit a joint resolution for when Congress returns to session next week. If you think that the Senate will simply not take this up, think again. Under the Congressional Review Act, after 20 days in the committee of jurisdiction, a discharge petition signed by only 30 Senators can remove the joint resolution from purgatory and force this onto the floor schedule. There would be the hurdle of a motion to proceed to get through, which I believe would require 60 votes. But after that, a simple majority can pass the joint resolution. Democrats may be able to keep this at bay, since I don’t believe there will be 20 days in Washington for the Senate between now and the election.

But what’s important here is that we could see a vote in the House on the TANF changes, which has become a flashpoint for the election. Obama’s “removing the work requirement from welfare” will get a vote, and presumably all House members will vote to overrule, even though Republican governors requested the changes. That may build enough pressure to force the Senate to act. Under a not-all-that-implausible scenario, the joint resolution would go to the President for his signature. And then he would have to decide whether or not to veto the measure, right before the election.

This may just be a House-only thing, in which case it could peter out. But considering the commitment that the Romney-Ryan campaign has put into the welfare charges, I could see this becoming one of the major legislative issues of the next month.

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David Dayen

David Dayen