POLITICS

How The Trump Administration Could Keep Food Assistance Going During The Shutdown

The president hasn't signed a funding bill, but he could decide the poor are entitled to benefits anyway.

WASHINGTON ― There’s a way for the Trump administration to continue food assistance during the government shutdown ― at least according to one legal theory.

The conventional wisdom is that because the agency overseeing food aid is shut down, benefits for 38 million Americans may disappear after February. President Donald Trump has said the shutdown could continue for months or a year.

The people who get food benefits will go hungry if this happens. The late 20th century expansion of the food stamp program helped eradicate starvation in the U.S.

But Professor David Super, an expert on administrative and welfare law at Georgetown University Law School, argues that the conventional wisdom misreads the Supplemental Nutrition Assistance Program’s underlying statute.

Super points to the text of the Food and Nutrition Act, which indicates more than once that anyone who is poor enough to qualify for benefits is supposed to get them. “Assistance under this program shall be furnished to all eligible households who make application for such participation,” the law says.

While it may seem obvious that people should get benefits for which they’re eligible, the wording is significant. It echoes the “entitlement” language in the Social Security Act that preserves health and retirement benefits for seniors even if the federal government is partially shuttered.

Super is not alone in his analysis.

“We have long agreed with some legal experts that SNAP’s authorizing law requires SNAP benefits continue during a shutdown,” Dottie Rosenbaum, a senior fellow with the Center on Budget and Policy Priorities, said in an email. The CBPP is an influential liberal think tank. 

The U.S. Department of Agriculture, which administers SNAP, did not respond to requests for comment. The agency has been mostly silent about what will happen to food assistance during a prolonged shutdown, except for a late December press release that only indicated it had funds for January’s benefits. It’s not clear what would happen in February if the government remains closed.

If the USDA reversed itself and said benefits would continue despite a prolonged shutdown, it would be in good company. The Internal Revenue Service had said it would collect tax revenue but not issue refunds ― until Monday, when officials said the agency would dish out refunds after all. 

Past actions by Congress on food stamps could authorize the government to continue to offer food stamps even during a shutdow
Past actions by Congress on food stamps could authorize the government to continue to offer food stamps even during a shutdown, according to legal experts.

“If the shutdown continues and USDA determines it does not have the authority to extend SNAP in the absence of congressional action, many low-income households would be at risk of serious hunger and hardship,” Rosenbaum wrote in a blog post, adding that food banks would see dramatic increases in needy families.

Ending SNAP would not only cause material hardship for the program’s beneficiaries ― most of whom are very young, elderly or disabled ― it would also rattle the economy.

Joe Brusuelas, an economist with the accounting firm RSM, estimated a full year without SNAP benefits would reduce gross domestic product by as much as 1 percent. (For comparison, most analyses of the new Republican tax law said it would boost GDP by less than 1 percent in its early years.)

A spokesman for House Agriculture Committee Chairman Collin Peterson (D-Minn.) declined to say whether the chairman agreed that food aid could continue to operate despite the shutdown.

It’s not just the entitlement language that should protect SNAP benefits. Though lawmakers have appropriated money for SNAP annually, Super argues they have also amended the statute over the years to make SNAP less contingent on appropriations.  

“The conventional wisdom, that SNAP must terminate benefits absent an appropriation, was correct under the statute as it once existed,” Super said in an email. “But, as often happens, the conventional wisdom failed to update as Congress repeatedly amended the statute.”

CONVERSATIONS