What the Administration’s SNAP Freeze Teaches Us

David Super

      For more than a decade, Congress has provided a contingency reserve to fund the Supplemental Food Assistance Program (SNAP) during government shutdowns.  The appropriations acts providing them as part of an appropriation “to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.),”

These funds are available “in such amounts and at such times as may become necessary to carry out program operations”.  Everyone involved with SNAP, very much including the Trump Administration, knew that for years.  Several public documents from the first Trump Administration reaffirmed this obvious point, as did the “Lapse in Funding Plan” USDA posted on its website on September 30 of this year. 

     But then there were Democratic senators to be pressured so the Administration did a sudden about-face, replacing its Lapse of Funding Plan with a crude attempt to blame Democrats’ supposed allegiance to immigrants and transgender people for the loss of SNAP funding.  As discussed in my previous post, the Administration insisted that somehow the SNAP contingency reserve could not be spent on SNAP benefits in a contingency. 

     About half the states sued in Massachusetts while a coalition of non-profits, cities, and retailers sued in Rhode Island and a putative nationwide class of recipients sued in California.      

     Those of us that were hoping the Government’s briefs would lend some clarity about its seemingly incoherent legal position were sorely disappointed.  The Justice Department asserted that there is “$0 in the SNAP account” notwithstanding Congress having explicitly provided $6 billion – some of which the Administration had already spent on state administration and other things – in that account.  It insisted that providing partial SNAP benefits with the remaining balance in the contingency fund – enough to support about two-thirds of regular benefits even if USDA did not exercise clear authority to transfer funds from an account with a large surplus – would be worse than providing no benefits at all. 

     Most remarkably, the Administration ignored the command of section 5(a) of the Food and Nutrition Act that “[a]ssistance under this program shall be furnished to all eligible households who make application for such participation.”  It vehemently insisted that it had discretion not to transfer funds without explaining why section 5(a) did not curtail what discretion it might otherwise have had.  In briefing and in public statements, the Administration continued to argue that it was acting to preserve school meals without explaining how that threat could plausibly materialize.  Child nutrition programs spend about $3 billion per month.  They had a reserve of $23 billion.  SNAP needed a transfer of no more than $4.5 billion, even by the Administration’s contestable estimates.  Unless the government shutdown lasted another half-year, child nutrition programs faced no conceivable peril.  The Administration speculated that Congress might not provide any further funds this year for child nutrition – something that nobody in either party has suggested and that has never happened in the almost eighty years of these programs. 

     Nowhere did the Administration address last year’s 7-2 decision of the Supreme Court that “an identified source and purpose are all that is required for a valid appropriation”.  Section 5(a) directs an activity, and section 10 of the Food and Nutrition Act specifies that benefit funds are to come from the Treasury.  Instead, the Administration demonstrated its evolving view of the Separation of Powers when the Solicitor General told the Supreme Court “the federal courts lack the authority to superintend how the Executive exercises its discretionary authority over appropriating limited funds among competing priorities.”  Pity my poor students, who believe that Congress appropriates federal funds. 

     Not surprisingly, the Rhode Island and Massachusetts courts quickly rejected the Administration’s claim that it could not spend the SNAP contingency reserve on SNAP.  Each in its own way tried to give the Administration room to make its own decision that this was precisely the situation where the transfer authority needed to be exercised.  The Rhode Island court gave the Administration until Wednesday to issue reduced benefits if that was its preference. 

     The Administration finally abandoned its argument about the contingency fund but refused to transfer funds and instead demanded that states follow a complicated process to recalculate benefits for every household to receive partial benefits.  USDA’s own declaration conceded that this could take weeks or months for some states to accomplish due to antiquated automated systems. 

     As if this obstacle was not enough, USDA then released erroneous tables to guide state recalculations.  These tables would cut benefits far more than was necessary to stay within the contingency fund.  The calculations required are relatively simple, and plaintiffs submitted a declaration showing USDA’s error.  USDA then responded with correct tables, insisting that it was planning to do this all the time. 

     With 42 million people lacking food assistance, the Rhode Island court last Thursday became exasperated with USDA’s foot-dragging and issued an order enforcing its earlier temporary restraining order (TRO) to compel USDA to issue full November benefits.  It also adjudicated the transfer authority question and found that section 5(a) compelled USDA to provide full funding. 

     USDA issued guidance Friday afternoon saying that it was “working towards implementing November 2025 full benefit issuances” and promising “[l]ater today, FNS will complete the processes necessary to make funds available to support your subsequent transmittal of full issuance files to your EBT processor.”  The guidance made no mention of the possibility that USDA might reverse its position if it obtained a stay of the Rhode Island court’s orders. 

     In response, numerous states – predominately blue but including a smattering of red – issued full SNAP benefits for November. 

     Friday evening, the First Circuit denied the Administration’s request for an administrative stay of the Rhode Island court’s orders but indicated it was still working on the Administration’s request for a stay pending appeal.  The Administration went to the Supreme Court, and Justice Jackson entered an administrative stay to last until 48 hours after the First Circuit resolved the Administration’s request for a stay pending appeal.  She offered little explanation, but one may speculate that, with a very thin opinion from the district court and none of substance from the First Circuit, she may have felt the case was not sufficiently presented for the full Court to consider the merits of a stay pending appeal. 

     For roughly a full day after Justice Jackson entered her stay, USDA left its Friday “full benefit issuances” guidance in place.  Some additional states initiated or completed issuances during this time.  Saturday night, however, USDA posted new guidance to its website forbidding full issuances, demanding that states “undo” issuances they already had completed – which would violate USDA’s own regulations – and threatening dire penalties against the states that had issued in response to its prior guidance.

     Late Sunday night, the First Circuit unanimously rejected the Administration’s petition for a stay pending appeal.  It found that the Administration had not meaningfully countered the district court’s finding that its foot-dragging, and the prospect of weeks of further delay, violated its initial TRO – which the Administration had not sought to have modified or timely told any court was unachievable.  The First Circuit found that, and the equities in favor of 42 million hungry people, militated in favor of letting the district court’s enforcement order stand. 

     By then, Congress was already moving toward ending the shutdown.  When Justice Jackson’s administrative stay was about to expire last night, the full Supreme Court, over her dissent, extended the administrative stay two more days. 

     Meanwhile, the states sought and received a TRO from the Massachusetts district court preventing USDA from following through on the threats in its Saturday evening memo or compelling those states to try to retrieve the benefits illegally.  Nonetheless, USDA has threatened EBT contractors in the states that issued benefits Friday and Saturday with not being reimbursed for benefits spent in those states.  This would effectively shut down SNAP in those states for all benefits, including remaining balances from earlier months.  USDA stated that, to remove this obstruction, all states had to do was retrieve the benefits USDA no longer believed were properly issued.  USDA’s brief describes a weird quasi-block grant it seems to have imposed on SNAP without any authority in statute or regulation.  Apparently at least one state complied.  With the shutdown ending, it is unclear what if any consequences USDA will face for its blatant disregard of the Massachusetts court’s order. 

     This entire episode is tragic.  We likely will see waves of evictions and utility shutoffs in the months to come against households forced to divert what cash they had to purchasing food.  When SNAP benefits are restored, some households may illegally try to sell them for cash – at a huge loss – to scrape together the funds needed to stave off these evictions and utility shutoffs.  Myriad other difficult personal decisions, including some with likely tragic consequences, will flow from this entirely unnecessary crisis and the Administration’s crude exploitation of vulnerable Americans for political gains. 

     The episode also has much to teach us about the state of our government.  The Administration’s initial position, in its September 30 “Lapse in Funding Plan”, was legally correct and consistent with what prior administrations, including the first Trump Administration, had always said.  But no meaningful guardrails prevented it from switching off that position to a series of ludicrous arguments, which the Justice Department had no problem pressing in court.  The Administration has gutted the experienced, highly professional staff that had run SNAP effectively for decades, and the remnants were incapable of performing simple benefit calculations, of following simple regulations, of writing competent guidance to states, or of recognizing the need to timely replace that guidance when its policy changed.  And neither the agency nor the Justice Department was especially concerned about violating multiple court orders. 

     Those believing that the key to understanding governance in our time is careful attention to the President’s social media posts were surely disappointed:  on November 1 he posted that it would be his honor to issue SNAP if a court told him from what source of money they should be drawn but then later in the week attacked the program as serving the unworthy and insisted that the Government should stay liquid, presumably by withholding funds for SNAP benefits. 

     Most remarkably, the Solicitor General declares in a brief to the Supreme Court what has become increasingly evident this year:  the Trump Administration is done with the Appropriations Clause and is claiming the Power of the Purse for itself.  I will shortly post on the sad fate of that Clause more generally.

     The response of ordinary people around the country to the Administration’s cut-off of SNAP has been heartening.  It confirms a trend we have seen in other venues, such as responses to federal law enforcement officers’ abuses:  We the People currently have a much clearer vision of this country’s core values than does institutional America.  Those of us invested in gesellschaft need to lose our arrogance and recognize everything that gemeinschaft gets right.  But the capacity of local volunteers of good will is woefully insufficient to offset the devastation wrought by a federal government that increasingly considers itself above the law.

     @DavidASuper1 @DavidASuper.bsky.social