Federal judges: Cover SNAP with contingency funds

Nearly 42 million Americans — including 900,000 in Arizona — are entitled to get at least some of their food stamps in November.

But not right away.

U.S. District Court Judge Indira Talwani ruled Friday that the U.S. Department of Agriculture must use the approximately $5.25 billion it has in a contingency fund to make up for the fact that Congress has not approved a new budget for the agency.

The judge did not question the assertion of lawyers for the USDA that there isn’t enough to fully fund benefits for the Supplemental Nutrition Assistance Program for the entire month, a figure the agency puts at between $8.5 billion and $9 billion. But she said it appears there is enough to allow for at least partial payments for recipients.

How quickly all that can occur, however, is unclear.

With the new month set to start on Saturday, there will be some delay in getting the benefits loaded onto what essentially are debit cards that recipients use when making purchases.

A spokesman for the state Department of Economic Security said if USDA is ordered to restore food stamp payments it will take his agency one day to deliver an updated file to a private company that loads benefits on Electronic Benefits Transfer cards, essentially a reloadable debit card that SNAP recipients use to make purchases.

“Our vendor will then need time to process the file and load the benefits,’’ said Brett Bezio. And he said the company “has committed to expediting this work.’’

In her ruling, Talwani rejected arguments that the dollars in the account were designed solely to be held back for emergencies like natural disasters, and not to be available simply because Congress has not funded the program. In fact, she said, it appeared clear that when funds run short — as they have now with the government shutdown and no new appropriation — the intent of Congress was for the agency to use the dollars it has to provide what funds it can.

“When Congress established the program in 1964, it did so in part to utilize the nation’s food supply ‘to the maximum extent practicable to safeguard the health and wellbeing of the nation’s population and raise levels of nutrition among low-income households,’ ‘’ Talwani wrote. Allowing the agency to ignore the fact that it does have contingency funds and refuse to meet that goal, she said, violates the law.

The judge also dismissed the contention by the federal government that the only people who have legal standing to sue over missed benefits are those who would be harmed by the cutoff — meaning the recipients themselves and not the states.

But Talwani did not immediately order USDA to provide benefits. Instead, she directed the agency to report back to her on Monday exactly how it intends to meet its legal obligation.

She said that can take the form of using that $5.25 million to provide partial benefits for November.

But the judge also noted that the agency has access to tariff revenues to fund other programs. And Talwani said they can choose that path.

Not funding benefits, however, is not an option.

She was not alone in her ruling.

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In a separate case filed in Rhode Island, a federal judge also blocked USDA from refusing to use its contingency funds to pay for benefits during the shutdown. And Judge Jack McConnell, like Talwani, also ordered the agency to figure out if it also had other dollars.

What’s behind the lawsuits 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 deadlock 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 SNAP payments. So recipients got their funds loaded onto their EBT cards.

With no legislative action so far this month, however, the agency 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 meet the income requirement of having a net monthly income — after housing costs, dependent care and medical expenses — that is at or below the federal poverty level. For a family of four, that is about $32,000 a year.

The average household benefit is about $358 a month.

A ruling in favor of the state would delay, at least for the moment, the question of whether Gov. Katie Hobbs should call lawmakers into special session to use proceeds from the state’s $1.6 billion rainy day fund to replace lost benefits.

That was the course of action urged by Mayes when she filed suit. The attorney general said that the loss of food for that many Arizonans could certainly be considered the kind of emergency the rainy day fund was designed to address.

The governor, however, has said only that she was considering “all options.’’ But Hobbs also said such a call would be largely academic.

“We need Republican support,’’ she said, as they control both the House and Senate. “So far the Republicans in the Legislature have said ‘no.’ ‘’

What Hobbs has done is allocate $1.8 million in unused COVID relief funds. That includes $1.5 million in aid to food banks and another $300,000 for special vouchers that people can use at farmers’ markets.

The governor agreed that’s only a small percentage of need.

“That’s what we have available right now,’’ she said Thursday at an event at St. Mary’s Food Bank in Phoenix. “And I’m hopeful that we don’t have to continue this conversation and find more change in the couch cushions.’’

But Hobbs also said that none of this would have been necessary had President Trump simply ordered USDA to use its emergency dollars — all without states having to file suit.

“These contingency funds exist for this purpose,’’ the governor said. “And there’s never been a government shutdown where the president has said, ‘no, we’re not going to feed hungry people who rely on this funding to not go hungry.’ ‘’