By Howard Fischer
Capitol Media Services
PHOENIX -- Saying there's no legal basis for it, the Department of Justice is asking a judge to toss the lawsuit filed by Attorney General Kris Mayes and counterparts in other states to force the federal government to continue to fund food stamps.
In legal papers filed Wednesday in federal court, Associate Attorney General Stanley Woodward Jr. does not dispute that the U.S. Department of Agriculture currently has about $5.25 billion in a "long term emergency fund.'' He said, though, that "provides critical support in the event of natural disasters and other uncontrollable catastrophes.''
But Woodward also is telling U.S. District Court Judge Indira Talwani that even if she accepts the arguments of the states of the harms that would be caused if food stamps dry up, she has no power to give the states that sued what they want.
"Even assuming USDA had discretion to reallocate these funds, the question of how to allocate limited funds among multiple critical safety-net programs, when there are insufficient funds, is one that the agency is empowered to make -- not a federal court, and certainly not plaintiffs,'' he said.
The decision by the Department of Justice to immediately seek to kill the lawsuit, which was filed just days ago, is no surprise.
In their lawsuit, the Democratic officials want Talwani to issue a temporary restraining order as soon as possible to keep the funds from drying up -- what is set to happen Saturday.
What's behind the lawsuit is the stalemate in Washington with the Senate lacking the votes to approve a House-passed "continuing resolution'' to keep government operating. Senate Democrats, whose votes are needed, are refusing to go along until the Republicans agree to reinstate tax credits that help underwrite the cost of health insurance by those covered under the federal Affordable Care Act.
That stalemate brought many government programs to a halt on Oct. 1 along with the firing or layoffs of some federal employees.
But by that date the USDA already had appropriated the funds for October payments to the Supplemental Nutrition Assistance Program. But with no legislative action so far this month, the agency has told states it cannot provide the cash so that beneficiaries can purchase eligible items when the new month begins Saturday.
For Arizona, that comes out to more than $161 million for nearly 900,000 state residents who get an average household benefit of about $358 a month. Nationally, the USDA says, the price tag is between $8.5 billion and $9 billion each month.
The lawsuit filed Tuesday by Mayes and others contends that Congress gave the agency specific permission to expend what is in the contingency account in case of a government shutdown. And Mayes said those dollars have been used in the past for precisely this kind of situation.
Not true, Woodward told Talwani. He said this is not a lapse in appropriations but "a unique circumstance'' where the failure of Congress to act means there simply is no appropriation at all.
What the states wants, Woodward said, also is illegal. He said any order for USDA to use its contingency funds "would be a blatant violation of the Antideficiency Act, a criminal statute that forbids the United States from making such an obligation without an appropriation.''
And there's something else: the fact that what's in the fund would not be enough to fully fund the program for all states. What would result, Woodward said, would be "a proverbial 'run on the bank' as states and beneficiaries exploit the pot of funds before it is depleted.''
He also told the judge that is is unrealistic to assume USDA could solve the problem of not enough cash by providing just partial benefits.
"Such a partial payment has never been made -- and for good reason,'' Woodward told the judge.
"It would require each state to recalculate the benefits owed based on the reduced funds available,'' he said. "USDA estimate that such a calculation, involving complicated system changes and processes dictated by statute and regulation, would take weeks, if it can be done at all -- thus significantly delaying issuance of benefits.''
And if Talwani isn't buying any of that, Woodward said there's an even simpler reason to throw out the case filed by Arizona and the other states. He said they lack the legally required standing to even be in court in the first place.
Woodward said court rules entitle only those who claim actual harm to file suit. That would be the SNAP beneficiaries.
But the states -- the only plaintiffs in this case -- don't fit that description. And he said there are court rulings which say that states cannot go to court claiming harms on behalf of their residents.
Woodward also said that Arizona and other states are arguing that if the USDA funds don't start to flow, the states themselves could put in their own dollars -- and seek reimbursement if Talwani concludes the the federal agency acted illegally in failing to fund November payments.
That, in fact, is precisely what Mayes is proposing.
She is asking Gov. Katie Hobbs to call the Legislature into special session to use some of the $1.6 billion in the state's rainy day fund to make up for the missing benefits. Mayes said that could be recouped if the judge sides with Arizona and the other states.
The governor, however, has been noncommittal, with press aide Christian Slater saying Wednesday that Hobbs "is considering all options.''
Woodward, however, is telling the judge that having the states put up the cash -- and then argue they are entitled to be reimbursed -- would amount to "a self-inflicted injury'' that the states cannot legally demand that USDA fix.
Ultimately, though, Woodward is telling Talwani that it all comes down to whether the USDA has the discretion to decide how to spend its money -- especially when there is no actual congressional directive to use a certain amount to fund SNAP benefits.
"The Supreme Court has long recognized that an agency's determination of how to allocate funds among competing priorities and recipients is classic discretionary agency action,'' he said.
Woodward may actually be anticipating that Talwani sides with the states and issues the temporary restraining order they are seeking. He already is telling the judge that if she rules against USDA, she should delay her order for 48 hours to give the government a chance to file an emergency appeal.
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