The Obama administration is at it again—subverting the plain language of the law to achieve policy goals Congress has blocked. This time, the president is seeking to twist the massive Child Care and Development Fund ($5.3 billion in fiscal year 2014) into fulfilling his dream of universal government-run pre-kindergarten.
Childcare that Supports Welfare to Work
The CCDF is the primary federal program to assist low-income families in paying for childcare and pre-k. In 2014, 1.41 million children in 852,900 families received assistance from the program, in which many families can choose childcare providers using a certificate (or voucher) because, as the Department of Health and Human Services, which administers the program through the states, explains, “the subsidy program emphasizes parent choice.”
These certificates have very few, if any, strings attached and thus allow parents to fulfill their roles, according to HHS, as the “first and most important teachers” of their children.
The Child Care and Development Block Grant (CCDBG) Act of 2014 reauthorized the law for the first time since 1996. Under President Clinton and the Republican Congress of the 1990s, CCDBG was an important part of the welfare reforms that emphasized work and empowered those persons receiving assistance.
These reforms worked. In 2014, 92 percent of families in CCDF “cited either employment or education and training as the reason for needing childcare.” The 2014 reauthorization increased CCDF funding and provided a slightly larger mandate for the program. That larger mandate, as defined by the HHS, covers “health and safety requirements” for providers, “outlining family-friendly eligibility policies,” and ensuring “transparent information” about childcare choices.
All of this seems simple enough: a program reformed by a bipartisan coalition (Clinton and a Republican Congress) is updated by a bipartisan coalition (Obama and a Republican Congress) to empower parents and help children from low-income families. That is, until you remember that President Obama has been blocked from achieving his takeover of the nation’s pre-k classrooms, and that he will do what he can to back-door that dream into a reality.
We Know Better than Parents
Enter the HHS’s 118-page “Notice of Proposed Rulemaking” in the Federal Register on December 24, 2015 (Christmas Eve). The department took the 32-page law and blew it open, inserting President Obama and the progressive Left’s preferred policies, with a special bias against parents with certificates (or vouchers). The president doesn’t like that vouchers put power in the hands of parents; he would prefer for bureaucrats to run everything. These proposed regulations move us in that direction.
The entirety of the regulations will simply continue the Obama-era practice of making childcare more and more expensive through standards, credentialing, inspections, and general red tape. But it is the undermining of the certificate program that reveals the administration’s true agenda.
Despite layering on weasel-words and paeans to the notion that parents are first teachers and deserve to make choices for their children, the anonymous regulators casually discard the wisdom of a robust certificate program to further their preferred method: “grants and contracts.” For a childcare provider to receive a grant from or contract with a state, they must comply with a host of federal and state regulations—regulations that allow the meddling bureaucrats in Washington to replace the decision-making of individual parents.
On the other hand, parents empowered with a certificate may shop around and choose the best place for their child, be it at a friend’s home, their church’s pre-k, or at a child-care business. This is real choice that respects the parents’ role as first teacher—something HHS claims to support.
Thus, they must twist the definition of choice to fit their purpose. On page 80,518 of their rulemaking, HHS actually makes the argument that because only 20 states or territories have (heavily regulated and costly) “grants or contracts” options, “parents in the majority of states/territories do not have a choice other than certificates.”
We Don’t Care What Your Representatives Have Said
In their explanation, the bureaucrats claim a state government could leverage federal grants and contracts to open more facilities in “underserved” areas or for “special populations.” This is to confuse HHS’s clear mission of empowering parents through assistance for a mandate to remake communities and prop up government-run pre-k programs.
The “grants and contracts” versus certificates debate is one place Congress has made clear its intent, stating:
Nothing in this [law] shall be construed in a manner -(1) to favor or promote the use of grants and contracts for the receipt of child care services under this subchapter over the use of child care certificates; or (2) to disfavor or discourage the use of such certificates for the purchase of child care services, including those services provided by private or non-profit entities, such as faith-based providers. (pg. 45)
Congress clearly saw HHS’s tactic coming and headed it off by inserting clear language to counter it. So why do the bureaucrats think they can get away with it? In a brazen and obnoxious bit of nit-picking reminiscent of the King v. Burwell case, HHS claims Congress put the above language in the wrong place of the law.
What can be done to reverse these deplorable changes to the CCDF? Americans can comment here on the rulemaking, write their congressman to have him intervene, and most importantly, the authors of the law in Congress can send a letter to HHS straightening out their intent. On page 80,474 of the Notice, HHS references a letter from the congressional authors of the law to explain a definition, so their voices can be impactful.
This administration must not be allowed to implement such destructive legislating-by-regulation on its way out the door. Congress must step up and stop these subversions of its authority.