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Stanford Law & Policy Review


welfare reforms, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, PRWORA, federalism, TANF


This article challenges the common characterization of the 1996 welfare reforms. States do not have the ability to do “almost anything they want.” Most notably, states with more compassionate political leadership who wish to counter the national trend may seek areas of flexibility in vain. The Act's mandates and penalties will force all states into particular policies that they may not have chosen had Edelman been correct about the range of their discretionary powers.Edelman's critique typifies the standard assessment of the Act. According to the prevailing view, the Act's policies are objectionable because the federal government has capped the money it will make available for welfare spending, while concomitantly eliminating the personal entitlement to assistance. In so doing, the nation has ceded programmatic responsibility to the states via block grants so that states may structure and operate welfare programs as they choose.This article first provides a descriptive outline of the structure of the PRWORA, emphasizing provisions that accord the states new discretionary powers. In contrast, this article then shows by close attention to the details of the Act that the discretion afforded states is often illusory. In practice, the Act constrains states by subjecting their purportedly discretionary policy decisions to conservative policy norms. Given the length of the Act, this examination must be illustrative rather than exhaustive.Finally, this article demonstrates that states and their citizens need not passively accept these normative federal policy choices. Concerned state governments may make at least two distinct types of efforts to mend the social safety net. The first type of effort makes use of opportunities embedded in the interstices of the Act itself, e.g., the statutory waivers granted under the previous Aid to Families With Dependent Children (“AFDC”) regime. The second type of effort consists of legal challenges to the Act. Some jurisdictions and individuals have already filed claims predicated upon individual rights theories such as Equal Protection and Fifth Amendment Due Process. Because these areas of legal analysis have already received attention, this article focuses instead on Tenth Amendment and Spending Clause claims. Such analysis reveals that significant portions of the Act may be subject to invalidation under the Spending Clause, as informed by the values of the Tenth Amendment, which reserves for the states those powers not expressly delegated to the federal government.