By Howard Fischer
Capitol Media Services
PHOENIX -- Americans waiting for full food-stamp benefits will have to wait at least a little longer.
In a brief unsigned order late Tuesday, the U.S. Supreme Court agreed to a bid by the Trump administration to block enforcement of a lower court order directing the U.S. Department of Agriculture to make full November benefits available immediately.
But it remains to be seen whether a majority of the justices are buying the arguments by Solicitor General D. John Sauer that the agency is not legally obligated to spend any more than the approximately $5 billion its had in a contingency fund for the Supplemental Nutrition Assistance Program -- enough to provide recipients with only about 65% of their regular payments.
The order is not a final decision. All it does is delay any directive for USDA to provide full funding until midnight Thursday, at which time the justices may issue a final ruling.
Only Justice Ketanji Brown Jackson voted against the move. She provided no explanation.
But it is an indication that she believes USDA is obligated to use all available funds to provide full benefits which cost close to $9 billion a month.
The order by the majority also comes as Sauer told the justices that there are negotiations to craft a final deal -- perhaps by Wednesday -- to reopen the government. And that, Sauer said, also could include a decision on restoring funding for food stamp payments for all 42 million Americans on the program, though he concedes "the outcome of that process remains, to be sure, uncertain.''
"That proposal, if adopted by both houses of Congress and signed by the president, would end the shutdown and moot this applications,'' he told the justices. But what is happening, Sauer said, there are orders from judges which "inject the federal courts into the political branches' closing efforts to end this shutdown.''
And those orders, in turn, "might affect the parties' willingness to agree to end the shutdown and which programs district court will try to force the executive branch to fund next.''
But with nothing final from Congress -- and the Trump administration still appealing two separate sets of court orders to provide food stamps -- Gov. Katie Hobbs on Monday said she is allocating another $1.8 million of COVID relief funds still under her control.
Like an earlier release in late October, that includes $1.5 million to members of the Arizona Food Bank Network. And there also is $300,000 for the Food Bucks Now program which lets individuals bring their SNAP debit cards to participating locations -- mainly farmers' markets and community grocery stores -- and get a $10 voucher each day to double their fruit and vegetable purchases and a separate $30 voucher for any SNAP-eligible foods.
Hobbs, relying on an earlier court order -- the one now before the Supreme Court -- had directed the Department of Economic Security to provide full benefits to SNAP recipients.
Gubernatorial press aide Christian Slater said he does know exactly how many of the nearly 900,000 Arizonans in the program have received their November benefits. But he said a "majority'' have had their full amounts loaded onto their Electronic Benefit Transfer cards, a figure that for the average Arizona family runs about $360.
"And we anticipate the remainder will have benefits on Thursday,'' Slater said.
All that comes despite the fact the USDA says it has released only about $5 billion nationwide for SNAP benefits. But that covers only about 65% of what families normally get, a figure that runs about $360 for Arizona households.
What is being fought about now is whether USDA will be forced to use another $4 billion that U.S. District Court Judge John McConnell said the agency has in other funds.
How that fight affects the Arizonans still waiting for their November benefits is unclear.
Sauer told the Supreme Court that there simply aren't full funds available. And that, in turn, has states rushing to grab their share, "each trying to draw down full benefits before whatever is left runs out.''
Yet at the same time, U.S. District Court Judge Indira Tawali, hearing a separate case, blocked USDA from trying to deter states from making a run on the remaining dollars by warning them that they could be forced to pay them back.
Issues of how this affects the shutdown aside, Sauer is telling the justices that McConnell acted illegally when he ordered USDA to fill that $4 billion shortfall -- the amount left after the contingency funds were exhausted -- with other dollars it has to guarantee full benefits. And that specifically means taking money from programs that provide dollars for school meals.
"The federal courts lack the authority to superintend how the executive exercises its discretionary authority of appropriating limited funds among competing priorities,'' he wrote. "Whatever the preceding circumstances, a district court cannot circumvent that limitations under the banner of compliance.''
But Catherine M.A. Carroll who represents the coalition that got McConnell to issue his order in the first place said that ignores the fact that Congress specifically said SNAP assistance "shall be furnished to all eligible households who make application for such participation.''
In a filing Tuesday, she told the justices that Congress, in expressing that directive, not only make contingency funds available but also specifically authorized USDA to transfer funds among other programs it administers -- including the Child Nutrition programs that provide meals in school.
More to the point, Carroll said it was Congress that set the higher priority on maintaining full food stamp payments. And that, she said, meant that McConnell, rather than dictating how USDA uses its funds, was simply ensuring the agency enforced that priority.
"Exercising authority Congress granted does not transgress congressional intent, particularly where Congress has elsewhere stressed the importance of SNAP to alleviating hunger and malnutrition,'' Carroll wrote.
She also noted that even if USDA does transfer the needed $4 billion from the school meals program that does not cripple it. Carroll noted it has more than $23 billion available, is in no immediate danger, and ignores the fact that Congress has months to replenish the funds.
"People need food now,'' she said. "And the government's speculative fear that Child Nutrition programs could run out of funding sometimes next year if the government taps those funds for SNAP cannot overcome the immediate harm that millions of Americans are actually suffering today.''
Carroll also told the justices they need to consider that the reticence of the USDA to solve the problem and make dollars available may be more political than financial.
"When USDA suspended SNAP benefits, its website prominently displayed a banner blaming 'Senate Democrats' for the fact the SNAP 'well has run dry,' '' she said.
"The president stated that people would not get SNAP benefits unless 'the Radical Left Democrats open up government,' '' Carroll continued. "These statements demonstrate the government's true motives and indicate classic arbitrary and capricious action.''
The bottom line, she told the court, is that harm already has occurred since November payments were halted.
"The government has failed to justify extending that suffering,'' Carroll said.
The USDA is also facing other opposition to its effort to delay providing full food stamp benefits.
A group of 27 former governors from both political parties filed their own legal brief late Monday telling the justices that the SNAP program, which has continued without interruption since 1964, is "essential to states' ability to care for their citizens' well-being.'' And they said allowing it to be interrupted -- or even having the payments reduced -- undermines the benefits of the program including not just reducing food insecurity but also improving child development, creating better health outcomes, and alleviating poverty.
They also point out that this is a targeted program aimed at the most needy, with a requirement that gross household income be below 130% of the federal poverty level. That's about $3,480 a month for a family of four before expenses for housing and child care.
"Recipients cannot simply wait for delayed payments,'' said the governors, including Democrat Janet Napolitano who was Arizona governor from 2003 to 2009.
"SNAP serves the nation's most food-insecure households -- families living paycheck to paycheck with no reserves to cover grocery costs if benefits arrive late,'' they continued. And if payments are late, they said, families have to make "desperate short-term decisions: skip meals, miss work to seek emergency food assistance, fall behind on rent to buy groceries, or turn to high interest debt.''
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