Section 1115 states that “the Secretary may waive compliance with any of the requirements” of specified parts of various laws. But this is not an open-ended authority: Any provision of law that can be waived under section 1115 must be listed in section 1115 itself. The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, are deliberately not listed in section 1115; they are not waiveable.
In establishing TANF, Congress deliberately exempted or shielded nearly all of the TANF program from the section 1115 waiver authority. They did not want the law to be rewritten at the whim of Health and Human Services (HHS) bureaucrats. Of the roughly 35 sections of the TANF law, only one is listed as waiveable under section 1115. This is section 402.
Section 402 describes state plans—reports that state governments must file to HHS describing the actions they will undertake to comply with the many requirements established in the other sections of the TANF law. The authority to waive section 402 provides the option to waive state reporting requirements only, not to overturn the core requirements of the TANF program contained in the other sections of the TANF law.
The new Obama dictate asserts that because the work requirements, established in section 407, are mentioned as an item that state governments must report about in section 402, all the work requirements can be waived. This removes the core of the TANF program; TANF becomes a blank slate that HHS bureaucrats and liberal state bureaucrats can rewrite at will.
Congressional Research Service: “There Are No TANF Waivers”
In a December 2001 document, “Welfare Reform Waivers and TANF,” the non-partisan Congressional Research Service clarified that the limited authority to waive state reporting requirement in section 402 does not grant authority to override work and other major requirements in the other sections of the TANF law (sections that were deliberately not listed under the section 1115 waiver authority):