A pair of federal district judges, at the request of various blue states, are moving to compel the Trump administration to pay Supplemental Nutrition Assistance Program (SNAP) benefits (known as food stamps in a less sensitive age, but rebranded in 2008) even though Congress has not authorized new funding for federal government operations, resulting in the current shutdown of much of the government. There are two key questions. One is whether the district judges have the legal power to do this. The other is the politics of the lawsuits.
On the first count, full disclosure: I am currently trapped in airport hell. What was originally supposed to be a direct flight home to New York last night from Madison, Wis., has turned into a flight this morning to Dallas-Fort Worth (which, if you consult a map, is not precisely in the direction from Wisconsin to Long Island) and a layover of at least nine hours, possibly more. Which is a roundabout excuse for saying that I have not been able to fully digest whether there is some colorable legal argument here for ordering the executive branch to spend money that Congress has not appropriated for that purpose. The claim, accepted by Rhode Island federal district Judge John McConnell and Massachusetts federal district judge Indira Talwani (remember her?), is that the executive branch has access to emergency funds, and the two judges believe that Congress thinks that SNAP benefits are a greater emergency in spite of not funding them than are other things that are currently not funded because Congress is not funding them.
I get that, if the Justice Department thinks that this is a nonsense legal argument, it is inclined to stand on principle. If so, more power to the DOJ. But it seems to me that this is not the best political strategy for the administration and the GOP to be following, especially four days before an election in several key jurisdictions.
Fact one: The government shutdown is a major story, and all the more important the longer it drags on. Fact two: Voters by and large do not like shutdowns. Fact three: While most voters will apply a certain amount of pox-on-both-houses cynicism to political finger-pointing, shutdowns have long been seen as a Republican tactic, so with Republicans in power, it’s hard work for them to overcome both that default assumption and the media blitz aimed at making them take all the blame. Fact four: This particular shutdown is almost entirely the Democrats’ doing, given that Republicans keep voting to fund the government with nearly no policy strings attached, whereas it is the Democrats who keep voting against reopening the government unless there are policy concessions made by Republicans to Democratic demands.
So, given that lay of the land — in which the GOP is not shutting down the government, and Democratic politicians keep openly admitting that a shutdown gives them their only leverage, yet Republicans have an uphill battle convincing people that Democrats are the ones doing the shutting down of the government — the GOP posture toward a program such as SNAP (a longtime Democratic priority) should be to visibly demonstrate that the administration is willing to fund it but is being thwarted by Democrats. Positioning things so that it is Democrats going to court to get SNAP benefits paid and Republicans fighting against paying them is not the best look. (If Republicans want to make a conservative policy case against SNAP, that’s another story, but nobody is attempting that at present.) If Republicans want to make Democrats own the shutdown, and to put more public pressure on them to come to the table (which they won’t do in order to get SNAP benefits paid, but they might do if they felt politically blamed for preventing them being paid), this seems not to be the best way to do it.