Liberty, Prudence, Imperfection, and Law

“The Return of Welfare as We Knew It,” By Bruce Frohnen

President Clinton signing welfare reform legislation in 1996.

For all the shame it brought on the United States, the Bill Clinton presidency can be thought of as having achieved one significant, positive reform. Clinton claimed to have “ended welfare as we know it.” And in a way he did. Legislation passed with his support required able-bodied welfare recipients to perform some kind of work or service. The logic and benefits to such a requirement should be clear. Those who want to work are granted the dignity of earning their check even as those who simply want a check are shown that free rides are not so easily to be had. The many complications to this program involving the disabled and those with dependents are the stuff of serious policy debates and were worked into the program imperfectly. But we should recognize limited progress where we see it.

The Obama administration, of course, in its very character rests on the assumption that the notion of a “free ride” is oppressive, denying the “right” to tax-funded benefits of those who are less well off because they are victims of an unjust system. Thus, it was not surprising (though little reported) that the Obama administration sought to restore welfare of the old free-ride sort. One central method of this restoration was massive expansion of the food stamp program. Now, food stamps themselves were reformed to come with work requirements, at least for able-bodied adults without dependents. But by now most of us know that the Obama administration would not allow a little thing like a statutory requirement to get in the way of its ideological agenda.

When the law clearly is not on your side, what does a president do in Obama’s America? He “waives.” Unfortunately, since 1996 the federal Department of Agriculture has had the power to grant waivers to the work requirement in areas of high unemployment. I say “unfortunately,” not because I doubt that there might not be some circumstances under which the work requirement does not make sense, but because to “waive” a law is itself not lawful. And here is a tongue- and brain-twister for you: to write a right to waive into the law is to make it less of a law.

If that sounds needlessly convoluted, consider the actual waiver process. We begin with the problem of delegation. Since the New Deal, Congress has ceded massive amounts of lawmaking authority to bureaucratic agencies. Eschewing its duty to actually debate and write detailed rules to accomplish its constitutional tasks (and none other), Congress long ago developed the habit of setting down vague goals and principles like “ending poverty,” then leaving it to the agencies to “fill in the gaps” by writing the actual rules people and organizations would have to follow. The next stage in this process was for the legislation to include the possibility of changes in the regulations that do not have to go through the onerous process of rulemaking. These “waivers” purport to establish criteria bureaucrats are to use in deciding whether the rule should apply to a given organization and/or person.

In fact, what happens is that federal agencies manipulate or outright ignore the criteria written into the legislation, instead granting waivers according to the goals of the current administration. As we know, this administration does not like rules it deems too onerous for recipients of taxpayer dollars.

Were we in a better condition as a nation, it would be surprising that the Obama administration is engaging in this sort of activity or that that fully forty-four of our states have used this process to weaken or eliminate work requirements. But here we are. And contempt for old-style “puritan” values is not the sole cause of the return of welfare as we knew it. There is a deeper problem with the work requirement that goes to the heart of our current regime.

Many states are ducking the work requirement in significant measure because it is too difficult and expensive to administer. The administrative costs of a welfare program that takes seriously the need to prevent development of a culture of dependency, working to restore recipients to the dignity of self-sufficiency are huge. This is why there was a significant push during the 1970s to replace the welfare system with a “negative income tax.” Even many conservatives flirted with this particular program because of its promise of eliminating overhead costs.

The idea behind a negative income tax was simple: if we are committed to seeing to it that people do not go hungry and if we want to do this as cheaply and nonintrusively as possible, why not use the administrative infrastructure we already have in the IRS to simply distribute money to those who need it? Instead of spending billions hiring people to sift through records and drag people into government offices for interviews and red tape, why not rely on the machinery that actually works? The IRS always has been very good at keeping track of people, so why not use it? We can simply keep track of people’s income and set a number below which the income should not fall. If it falls below that amount, instead of sending a bill, we send a check.

Simple, right? It turns out there are a few problems with this simple methodology. The most obvious administrative ones can be dealt with, however, and still rather cheaply. You can figure out how to keep track of income more often than once a year (companies and rich people file quarterly statements, after all).

The problem with the negative income tax was what its system did to the people who received the checks. Thank goodness the government decided to do some testing before going ahead with the program, because what they found was that—surprise!—all kinds of people decided that, if the government was going to give them free money for not working, well, then, they would happily not work. All the talk about how the income provided would be low enough that work would still “pay” evaporated in the face of massive evidence that many of those targeted by the program chose to leave the (official, documented) workforce in favor of the automatic check. Thus, the negative income tax went the way of the dinosaur, though it did influence policy in the form of earned income credits for the working poor.

What this means is that simply cutting “overhead” in the sense of oversight does not work if your goal is to save money. Obviously it does work if your goal is to foster economic independence. It works fine, of course, if your goal is to hand out more taxpayer dollars to those you are keeping dependent upon your generosity with other people’s money, which is why this administration loves no-strings-attached welfare payments.

None of this is to say that the food stamp work requirement is a good idea. A federal program handing out vouchers for food in exchange for approved work is an administrative and moral nightmare. It cannot achieve justice for particular recipients, who may have valid reasons for not working or who may be gaming the system in various ways. Even if perfectly applied, it fails to take account of the various issues of character and circumstance that make one-size-fits-all national programs unfair.

All of which is why welfare programs historically have been local in origin and administration. Before the Johnson administration’s “war on poverty” commenced the war on poor people’s culture and character, relief boards, based in counties and municipalities, distributed public assistance through personal oversight. The system was far from perfect, of course. It relied on personal character and personal interactions as well as the commitment and generosity of small-scale political units. What is more, it was self-consciously a kind of interstitial program, relying on families, churches, and voluntary associations and not just taxpayer money to see to the needs of poor people.

Then again, it is the delusion that government programs are capable of seamlessly tending the needs of given categories of people that lies at the root of our self-impoverishing but ever-expanding administrative and welfare state—as we know it. If a one-size-fits-all program will not work, perhaps the federal government might want to consider leaving the programming to someone a bit closer to the facts, characters, and circumstances. A radical notion, I know, but one I humbly suggest we might want to reconsider.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

3 Responses to ““The Return of Welfare as We Knew It,” By Bruce Frohnen”

  1. gabe

    Great piece, again, Bruce!

    Of course, the Feds would never go for the “interstitial” as that might provide some *cover* / support for churches and other non-state (non-progressive) actors.

  2. gabe


    Was going to comment on what one may call the return of the suspension and dispensation prerogative of the Crown under the auspices of the American Executive Branch.
    I noticed in your essay at LLB of 5(?) August, that you mention and recommend Phillip Hamburger as well as Helmholz.

    Loved Hamburger’s Administrative Law piece.
    Anything you would recommend from Helmholz (sp?)?

    Also, in your experience, do you see Hamburger’s view gaining a greater foothold in the profession. Justice Thomas seems to be interested in it – but I hear of not many others – are there?

    take care and another great piece.


  3. Randolph Sunderland

    Unfortunately, under President Obama we are beating a path back to big government and away from the independence and mobility that welfare reform sought to foster. I’m very proud to have been one of the authors of that 1996 legislation.


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