The justice played a bad hand about as well as it could be played.
The justice played a bad hand about as well as it could be played.
I n view of what appears to be the imminent reopening of the government, with fully funded benefits under the Supplemental Nutrition Assistance Program (SNAP), I expect the Supreme Court to leave undisturbed Sunday night’s unanimous ruling by a three-judge panel of the First Circuit, upholding the lower court order that the Trump administration make full SNAP payments for 42 million beneficiaries nationwide.
If I am right, many on the left will owe an apology to Justice Ketanji Brown Jackson. In some quarters on Friday night, she was vilified for issuing an administrative stay that paused the lower court order by Judge John J. McConnell Jr., an Obama appointee to the federal district court in Rhode Island. In point of fact, from the perspective of most progressives, and of other Americans who believe (as I do) that it was both gratuitously harsh and political malpractice for the Trump administration to pick a fight over what we used to call “food stamps” benefits, Justice Jackson played a bad hand about as well as it could be played.
Let’s start with the basics: The United States Department of Agriculture (USDA) should have paid the full November benefits without making a peep.
The president’s apologists have tried to frame this dispute as one in which the president has unilateral authority to decide what payments get made, an executive power especially important in crisis conditions, such as those created by the government shutdown. Thus, the argument goes, the judiciary imperiously usurped the administration’s prioritization of government obligations while funds dried up. As has become customary, this yarn omits that what is actually at issue is Congress’s power. SNAP payments, and welfare payments generally, are tightly controlled by statute. To the extent Article II of the Constitution is relevant, it mainly involves the president’s duty to execute the laws faithfully.
SNAP benefits cost about $8 billion per month. Congress appropriates them annually ($94 billion in FY 2025). The funding is paid in block to the states, which distribute benefits monthly, through contractors. The contractors transmit individual payments to beneficiaries through electronic benefit transfers (EBTs), which work like debit cards in grocery stores (there are no stamps anymore).
By statute, Congress has provided a contingency fund that USDA is supposed to tap if the funding for SNAP runs low. Currently, there is around $6 billion in the contingency fund, roughly three-fourths of what is necessary to pay the full monthly benefit. Beyond that, Congress has given the executive branch broad authority to tap other USDA programs to make up shortfalls, particularly in an “extraordinary emergency.” (See Section 2257 of Title 7, U.S. Code.)
Now, is SNAP rife with waste, fraud, and abuse? Undoubtedly, as are virtually all programs involving government payments (contracts as well as welfare benefits). Fiscally responsible conservatives (a category that once included many more Republicans than it does today) seethed during the Obama years as the number of SNAP beneficiaries soared to nearly 48 million, double what it had been a decade earlier. It’s pared back now to 42 million, but there are still too many people on the public dole after twelve years (out of 17) under Democratic administrations.
Nevertheless, because SNAP is a statutory program, the proper way to address its flaws is through legislation, in the budgetary process (which, yes, has been dysfunctional for years). Using a shutdown to monkey with benefits for the needy, when the funding (at least for November) was readily available has been astonishingly tin-eared. When not lavishing $300 million on a White House ballroom project and pardoning a felon who orchestrated a $2 billion infusion into one of his crypto businesses, President Trump has managed during the shutdown to shift government funds as needed to pay his favored payees — e.g., members of the military services and FBI agents. Why, then, arm Democrats to argue that the administration is needlessly making tens of millions of Americans go hungry? And why withhold the funding, when we know that some significant percentage of the 42 million people really do need the help?
As the First Circuit panel explains, when the USDA decides to make reduced payments, it is supposed to notify the states promptly of the date when that is to occur and the percentage by which allotments are to be reduced. On October 10, the USDA announced that if the shutdown that had begun on October 1 went unresolved, funds would be unavailable to pay the full November SNAP benefits; but the USDA did not indicate when and to what extent payments would be reduced — as the circuit notes, the government made no such calculation about partial benefits until ordered by Judge McConnell to do so after the lawsuit against the USDA was filed.
On October 24, one week before the November SNAP benefits were to come due, the USDA changed tack and announced that no benefits would be paid. Although Congress had provided the contingency fund for exactly the sort of funding lapse caused by the shutdown, the USDA rationalized that the $6 billion in the fund could only be used to supplement benefits payable under an existing appropriation; since the 2025 appropriation had expired October 1, there was — by this logic — nothing left to supplement.
A lawsuit was quickly filed in Rhode Island federal court by an array of left-leaning nonprofit organizations that advocate for SNAP recipients, with such additional plaintiffs as the Service Employees International Union, a food retailer, and various local governments (e.g., Albuquerque, Baltimore, Columbus, and New Haven). They contended that the suspension of benefits was contrary to law as well as arbitrary and capricious under the Administrative Procedure Act.
Judge McConnell initially issued a temporary restraining order directing the government to use the $6 billion in contingency funds to pay partial benefits. Since that wouldn’t cover the full costs, McConnell gave the USDA a choice: Either (1) use its undeniable discretion to find the addition funds necessary ($2 billion) to make the full November payment by Monday, November 3; or (2) make the partial payment by Wednesday, November 5 — the extra time given to enable the government to resolve what it claimed were the “administrative and clerical” burdens attendant to distributing partial payments through a system bureaucratically geared for full payments.
The USDA did not challenge the terms of the TRO. Instead, it tried gibberish: McConnell was told that the USDA had selected the partial payments option, but that this would entail technical changes in state SNAP systems that could delay the EBT payments to individual beneficiaries “anywhere from a few weeks up to several months.”
Unsurprisingly, McConnell found this unacceptable — particularly considered in conjunction with (a) the USDA’s failure to timely plan for the partial payment contingency as the law requires, and (b) how comparatively easy it would have been to shuffle the funds necessary to make the full payment for November (again, pursuant to congressional authorization to do so). Ergo, the judge concluded that the failure to pay the full amount was arbitrary and capricious. He issued a new TRO, directing the USDA to make the full November by November 7 — i.e., last Friday, by midnight.
This prompted a flurry of Friday night litigation. The Trump administration asked the First Circuit to issue both an administrative stay (a brief pause in enforcement of the TRO so the circuit could get its arms around the contested issue) and a stay pending appeal (i.e., a pause of the TRO until the circuit decided the case).
In a craven move, the First Circuit denied the administrative stay but told the government it was still considering the stay pending appeal. In effect, this kicked the matter to the Supreme Court. That is, by denying the administrative stay, the circuit ensured that — absent Supreme Court intervention — the $8 billion payment would have to be made by midnight; its pose of continuing to ponder the possibility of a stay pending appeal would be mooted by the clock.
Consequently, the Justice Department made an emergency appeal to Justice Jackson, the circuit justice for such applications from the First Circuit.
There is no reason to doubt that Jackson was predisposed in favor of McConnell’s ruling and the denial of any stay. She also had to know, however, that — with the clock ticking toward midnight — it would be unreasonable to deny the government’s application without a brief administrative stay so the Court could understand what was at issue. Or, at least, she had to understand that at least five (and probably more) of her colleagues would think so — such that, if Jackson denied the stay, the Justice Department would appeal to the full Court, which would overrule her.
Given the situation and her sympathies, which would have been to get the SNAP beneficiaries paid sooner rather than later, Jackson handled the matter deftly. To the consternation of knee-jerk progressives, she granted the administrative stay that the First Circuit should have granted. But she did it with a caveat: She said she expected the First Circuit to expeditiously decide the administration’s pending request for a stay pending appeal, thus prodding the three-judge panel to rule quickly; and she added that her administrative stay would remain in effect for 48 hours after the First Circuit ruled, in effect, proposing a tight time frame in which her Supreme Court colleagues should make a ruling once the time came.
Of course, it might not work the way Jackson hopes. It was predictable that the First Circuit would rebuff the Trump administration — the panel was made up of one Obama and two Biden appointees, and neither the laws nor the facts were on the government’s side. But the full Court could still order an open-ended administrative stay, which would keep the controversy going for days or even weeks while SNAP benefits went unpaid.
Yet, by being reasonable, Jackson had laid the groundwork for the full Court to get up to speed beginning Friday, while the First Circuit was deciding the stay-pending-appeal issue. Given the intense media reporting about how the Trump administration was starving people and creating a “food insecurity” crisis, there would be pressure on the Court to act quickly once the First Circuit rebuffed the administration.
And now, in the interim, it looks like the shutdown could be over, or on the cusp of being over by tomorrow. That’s when Justice Jackson’s stay — the 48 hours that began running when the circuit ruled Sunday night — expires. Assuming the Senate deal to reopen the government and fully fund SNAP stays on course, and the House agrees, the only sensible outcome would be for the Court to deny any Justice Department application for additional relief. Indeed, I’d be surprised if the USDA doesn’t simply abandon its position and agree to make the full payment forthwith.
A pointless controversy is drawing to a close, I think . . . and hope.