The Administration’s Shutdown of SNAP is Obviously Illegal

David Super

     On Friday, October 24, 2025, the Trump Administration suddenly released a memo claiming that it lacks the authority to spend contingency funds appropriated by Congress to provide November benefits in the Supplemental Nutrition Assistance Program (SNAP).  This position, which contradicts a position this Administration adopted on September 30 and has had on USDA’s website until recently, is utterly without foundation in law.  This is another example of the Administration trying to wrest the power of the purse away from Congress by refusing to undertake congressionally mandated spending even as it spends other moneys on its preferred activities without congressional authorization. 

     For the past several years, Congress has included a $3 billion contingency fund in each year’s SNAP appropriation.  Unlike the regular SNAP appropriation, which is limited to a single fiscal year, these contingency funds have been made available for one or two additional years.  For example, the SNAP appropriation for federal fiscal year 2024 states: 

For necessary expenses to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), $122,382,521,000, of which $3,000,000,000, to remain available through September 30, 2026, shall be placed in reserve for use only in such amounts and at such times as may become necessary to carry out program operations… .

At the beginning of October, a total of $6 billion is available in contingency funds for SNAP:  $3 billion from the fiscal year 2024 SNAP appropriation that will not expire until a year from now and another $3 billion from the fiscal year 2025 SNAP appropriation that will not expire until September 2027.  With no annual SNAP appropriation for fiscal year 2026, and with the regular fiscal year 2025 appropriation not available beyond October’s SNAP benefits, release of this $6 billion obviously has “become necessary to carry out program operations”. 

     The Administration recognized this in its September 30, 2025, “Lapse of Funding Plan”, which USDA only removed from its website in the past few days.  The plan noted that October benefits were obligated in fiscal year 2025 and chargeable to that appropriation but that “multi-year contingency funds are also available to fund participant benefits in the event that a lapse occurs in the middle of the fiscal year.”  During the 2018-19 appropriations lapse, the first Trump Administration similarly understood the contingency funds to be for precisely this purpose, declaring itself “committed to minimizing the impact of the appropriations lapse on SNAP households and directing the limited funding available from the contingency that can be used toward normal SNAP operations, including the issuance of benefits for new applicants in February.”  Other administrations have made similar statements when appropriations lapses occurred or were threatened. 

     The Administration now asserts “SNAP contingency funds are only available to supplement regular monthly benefits when amounts have been appropriated for, but are insufficient to cover, benefits. The contingency fund is not available to support FY 2026 regular benefits, because the appropriation for regular benefits no longer exists.”  It cites no legal authority for that position, and nothing in that appropriation or general appropriations law requires that the contingency funds be used only to supplement a regular appropriation.  (This contrasts with the two laws the Administration relied upon to move research into servicemembers’ pay, which does require a current, unexpired appropriation to receive transferred funds.)  All the appropriations act requires is that spending the contingency funds has “become necessary to carry out program operations”, which is obviously the case when benefits for forty million people are at risk.    

     Not only is the Administration contradicting its own “Lapse in Funding Plan” and the first Trump Administration, but its position is internally inconsistent.  It asserts “the contingency fund is a source of funds for contingencies, such as the Disaster SNAP program, which provides food purchasing benefits for individuals in disaster areas”.  But Disaster SNAP is authorized under section 5(h) of the Food and Nutrition Act, just a few subsections down from section 5(a), which authorizes regular SNAP benefits.  The SNAP appropriation, which includes the contingency fund, references the entirety of the Food and Nutrition Act as a whole, making clear that all of the funding provided — including contingency funds and annual appropriations — can be used for all of the benefits provided by the statute, including regular benefits and disaster benefits.

     Even if SNAP contingency funds were somehow unavailable to support SNAP benefits in November, USDA has broad transfer authority among nutrition programs.  It has already tapped this authority to move $300 million from child nutrition programs to keep the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) running during the current lapse in appropriations.  In early October, child nutrition programs had $23 billion available.  Those programs spent less than $3 billion per month last year.  Thus, the child nutrition account has more than enough to fund the roughly $8 billion required to pay for November SNAP issuances, another $300 million transfer to WIC, two months of SNAP administrative costs (slightly over $400 million per month) and child nutrition program’s operation without any risk of running out any time soon.  Nonetheless, the Administration’s memo declares that “[t]ransfers from other sources would pull away funding for school meals and infant formula.” 

     Most simply, the Food and Nutrition Act states “Assistance under this program shall be furnished to all eligible households who make application for such participation.”  The Administration has not identified any justification for its disregard of this requirement.  A more clearly unlawful impoundment is difficult to imagine. 

     Terminating SNAP is a choice, and an overtly unlawful one at that.  The Administration has chosen to hold food for more than forty million vulnerable people hostage to try to force Democrats to capitulate without negotiations. 

     @DavidASuper1 @DavidASuper.bsky.social