Judge says she’ll likely order Trump administration to send SNAP funds to states

(Adobe Stock)

A federal judge on Thursday indicated she would probably order the Trump administration to use reserves to partially fund food assistance for about 42 million Americans in November, potentially delaying a complete cutoff in benefits during the government shutdown.

Judge Indira Talwani of the U.S. District Court for the District of Massachusetts spoke at a hearing in litigation brought by a coalition of 23 Democratic attorneys general and three Democratic governors against the Agriculture Department over its decision to not tap into a contingency fund to pay for Supplemental Nutrition Assistance Program, or SNAP, benefits in November.

Because of the government shutdown, states are not able to access federal funding for the program, leaving millions of people without crucial payments necessary to purchase groceries. The program would have ceased to send out funds to states as soon as Saturday.

“Congress has put money in an emergency fund, and it is hard for me to understand how this is not an emergency,” Talwani said during Thursday’s hearing.

At the hearing, Talwani said she can’t wait for Congress to pass an appropriations bill, saying she has to rely on existing laws and regulations that USDA has already adopted.

“Congress told you what to do if there is no money,” said Talwani, who was nominated to the bench by President Barack Obama. “You need to figure out how to stretch that emergency money for now.”

The judge made it clear she wants USDA to get the money out the door, not come up with excuses for why it believes it can’t.

“That’s lawyering,” she said. “I want agency action, not lawyering.”

In the last federal shutdown, which ran from December 2018 into January 2019 during the first Trump administration, officials told states they could use the contingency funds to cover SNAP payments.

While states would be able to access the contingency funds if Talwani orders it, the $5.5 billion available is not enough to pay for a full month of benefits. The program costs the federal government about $9 billion monthly. But because SNAP benefits are not released all at once to recipients, states will be able to make partial November payments, giving Americans some respite as the shutdown continues.

The benefits are likely to be delayed briefly regardless of how Talwani rules because states and the contractors that place SNAP benefits into Americans’ Electronic Benefits Transfer—or EBT—cards need a few days’ notice of the allocation of federal funds.

Members of Congress in both parties had raised alarm at the prospect of the shutdown cutting off SNAP funds, but attempts to fund the program haven’t succeeded. The government has been shut down since Oct. 1, as Senate Democrats say they won’t back a measure to continue funding unless Affordable Care Act subsidies set to expire are extended, and Republicans say they won’t negotiate on the ACA until the government is reopened.

In a memo sent to states last week, USDA said the contingency money is meant to be held in case of natural disasters or other catastrophes, not used to cover for a lapse in government funding. But the attorneys general and governors argued in their lawsuit that withholding the contingency funds violates federal spending laws and that the administration should be required to disburse the money, even if it covers only partial payments for the month.

The federal government pays the full cost of SNAP benefits, meaning states do not have a budget to fund the mass-scale program on their own, although they implement the payments. If benefits lapse in November, it would mark the first time in the program’s 60-year history in which the federal government failed to make the food-assistance payments because of a pause in appropriations.

Massachusetts Attorney General Andrea Joy Campbell (D), in a social media post Tuesday, said the Trump administration “has the money to continue funding SNAP benefits—they’re choosing to harm millions of families across the country already struggling to make ends meet.”

As the hearing unfolded Thursday, USDA’s official website featured a banner blaming Democrats for any potential lapses in SNAP funding. The partisan message says the “well has run dry” for SNAP funds and that there will be no benefits issued Saturday.

“We are approaching an inflection point for Senate Democrats,” the message said. “They can continue to hold out for health care for illegal aliens and gender mutilation procedures or reopen the government so mothers, babies, and the most vulnerable among us can receive critical nutrition assistance.”

Similar messages have appeared on federal websites throughout the shutdown, and experts say they could violate the Hatch Act, which bars most civil service employees in the executive branch from engaging in political advocacy or activity.

House Speaker Mike Johnson (R-Louisiana) on Wednesday chided the Democratic attorneys general for bringing the lawsuit against USDA, claiming that Congress did not authorize money for the contingency fund. However, Democrats argue that the contingency funds are appropriated by Congress and are meant to be accessed to avoid a lapse in SNAP funding.

The Trump administration argued in response to the lawsuit that the case should be dismissed because the contingency funds are meant for disasters—not cases in which Congress has failed to appropriate funds for the program—and because the money isn’t enough to pay a full month of benefits, which would force states to reduce benefits and create “substantial chaos.”

Lawmakers from both parties have raised the alarm over the consequences of a lapse in SNAP funding. By Thursday evening, a Senate bill that would allocate funds to ensure uninterrupted benefits had the support of 62 senators, including 15 Republicans. But Senate Majority Leader John Thune (R-South Dakota) has said he’s against what are known as “rifle-shot” bills to fund individuals parts of the government. And even if the Senate passes that measure, the House would also have to vote on it, and House Majority Leader Mike Johnson (R-Louisiana) has refused to bring the chamber back into session until Democratic senators pass a Republican bill to reopen the government.

Meanwhile, food pantries are already struggling to meet the increased demand from millions of Americans looking to stock up now that their SNAP benefits will probably be missing. At Bread for the City in D.C.—a food pantry where 97 percent of clients are also SNAP recipients—development officer Ashley Domm said people have reached the pantry’s doors in recent days crying, unsure of what they can do to keep their families fed if SNAP funding halts.

“The thing that’s really hard to swallow is that this extra work we’re doing, this scrambling, none of it has to happen,” Domm said. “This is a program that’s never been disrupted by a federal shutdown. … There are emergency funds just sitting there waiting to be deployed so that people don’t have to go hungry … [and] our policy leaders are not deploying that solution.”