The rulemaking required to end union dues skimming from CCDF and TANF funds may face legal challenges from unions or states. The most likely challenge would be one based on whether the rule is beyond the scope of the regulatory authority Congress has delegated to ACF in relevant statutes. At 5 U.S.C. § 706(2), the APA states:
The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be –
. . .
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.]
However, a court would likely find that rules prohibiting union dues skimming are not “in excess of statutory jurisdiction” or “short of statutory right.” Congress has granted the HHS secretary broad authority to propose informal comment and notice rulemaking regarding the CCDF in the Child Care and Development Block Grant Act and the Social Security Act. The CCDBG Act specifically states: “Amounts received by a State under this section shall only be used to provide child care assistance.” By proposing rulemaking to ban union dues skimming of CCDF funds, ACF would fulfill Congress’ mandate to ensure CCDF funds are used only to provide child care assistance, not to subsidize unions that provide no child care services to eligible families.
Opponents may argue that any regulatory restriction on the use of CCDF funds must be expressly required by statute. However, administrations have enacted several restrictions on the use of CCDF funds that are not specifically required by statute, such as prohibiting the use of funds for facilities construction or improvement, educational opportunities for children in grade school, or meeting state share requirements for other federal grants. Eliminating dues skimming by rule would be simply another regulation to enforce CCDF’s statutory mandate.
Likewise, the ACF, through the HHS secretary, derives authority to enact rulemaking that prevents dues skimming of TANF child care benefits from the Social Security Act. The act explicitly states that the secretary “shall make and publish such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which each is charged under this chapter.”
 42 U.S.C. § 9858; 42 U.S.C. § 618.
 42 U.S.C. § 618(b)(1).
 45 C.F.R. § 98.56.
 42 U.S.C. § 1302