The 42 million Americans who rely on nutrition assistance are in danger of going without benefits to help them afford food if the government shutdown drags on after November 1. But that’s not because the government lacks the money to fund benefits. It’s because the Trump administration is flouting the law by refusing to release the funds.
On Friday, the administration issued a memo claiming it can’t tap a contingency fund that currently has about $5 billion in it for the Supplemental Nutrition Assistance Program, or SNAP, also known as food stamps, because it’s reserved for sudden emergencies like natural disasters.
The website for the Department of Agriculture also now has a large banner at the top declaring that SNAP has “run dry” and “there will be no benefits issued November 01.” The message blamed Senate Democrats for “hold[ing] out for healthcare for illegal aliens and gender mutilation procedures,” attempting to blame immigrants and trans people for the ongoing shutdown.
But the reality is that not only is the contingency fund meant to be used in this exact fashion, it’s illegal for the Trump administration to refuse to do so. The Food and Nutrition Act of 2008, which reauthorized the food stamp program and changed its name to SNAP, states clearly that benefits “shall be furnished to all eligible households who make application for such participation.” And the contingency fund would allow those benefits to be delivered as required. Instead, the administration is rejecting its authority, holding hungry families hostage to an ongoing political fight over government spending.
As David A. Super, professor of law and economics at Georgetown University, put it, “There are no ifs, ands, or ors there.” Anyone who is eligible and applies must be paid benefits. “I don’t know how Congress could have written it more clearly,” Super said.
Trump’s second term has been characterized by repeatedly withholding money that Congress has legally appropriated.
Super also said the administration can’t argue that there’s no money to fund benefits. “Congress provided a contingency fund for precisely this,” he said. The law that funded SNAP in March 2024 states that $3 billion “shall be placed in reserve” each year to be used “at such times as may become necessary to carry out program operations.” There are only two contingencies involved, a Democratic congressional aide pointed out: that the fund not be used as the first source of funding SNAP, and that it be tapped when needed to keep the program operating. The first condition has been met because all the other appropriations are gone; the second is met because without using the fund, food stamps won’t be sent out.
In 2019, the Government Accountability Office issued an opinion that USDA has the legal authority to tap the contingency fund in a shutdown (although not to pay benefits early to get out ahead of a lapse in funding, as Trump’s USDA did in 2019). That was this administration’s own stance just before the shutdown began. In the USDA plan for what would happen if federal funding lapsed, posted on September 30 but since removed, the agency noted that the contingency fund is “available to fund participant benefits in the event that a lapse occurs.”
The administration is “rejecting a decision Congress made that this money is available,” Super said. “They don’t have the authority to amend an act of Congress.”
In response to a request for comment, a USDA spokesperson said, “We are approaching an inflection point for Senate Democrats. Continue to hold out for the Far-Left wing of the party or reopen the government so mothers, babies, and the most vulnerable among us can receive timely WIC and SNAP allotments.”
The fund alone doesn’t have enough available to pay all $9 billion due to hungry people on November 1. But here, too, the administration is ignoring the statutory requirement that benefits be paid out by not exercising its existing authority to transfer money between nutrition programs at USDA. Child nutrition programs, which include things like school meals, have over $22 billion sitting in their accounts. They only need to pay out about $3 billion a month to keep programs going, leaving “more than enough,” Super said, to top up the contingency fund and ensure all SNAP benefits go out for the month of November. Any money used now can be replaced once Congress reaches an agreement to reopen the government.
“Because the Food and Nutrition Act says you will pay benefits to everybody and they legally could do so by tapping that transfer authority from child nutrition, they have no legal excuse for not doing so,” Super said.
This is, in fact, exactly what the administration did earlier this month to ensure that benefits kept flowing for the Special Supplemental Nutrition Program for Women, Infants, and Children, better known as WIC. Although it claimed to be using tariff revenue—which it can’t simply funnel into any program it wants—what it actually did was move money from child nutrition programs, which are only partially funded from the prior year’s tariff revenues, to WIC. That is “very clearly an authority Congress has enacted into statute for the secretary to use,” the Democratic aide said.
But it’s hard to know for sure what would have happened if the administration had followed its authorities under law and funded SNAP. That’s because, despite Democrats asking what its plan would have been, it hasn’t shared any information, the Democratic aide said.
On Tuesday, attorneys general in 25 states and Washington, D.C., sued the Trump administration challenging the administration’s refusal to tap the contingency fund. Democracy Forward and the Lawyers’ Committee for Rhode Island also announced that they plan to file a lawsuit. “The administration’s callous disregard for the needs of people—including children and senior citizens—is unlawful and immoral,” said Democracy Forward President Skye Perryman.
Trump’s second term has been characterized by repeatedly withholding money that Congress has legally appropriated. Despite the Constitution dictating that Congress has the power to decide where money in the Treasury gets spent, the administration has withheld hundreds of billions of dollars that lawmakers approved, putting everything from Head Start to the Institute of Museum and Library Services at risk. Its treatment of SNAP fits into the trend. “We appropriated money for SNAP and they’re refusing to spend the money,” the Democratic aide pointed out. “That’s impoundment.”
But the current refusal to fund SNAP goes above and beyond. It is “the most extreme impoundment we’ve seen yet,” Super said. “It’s the largest amount of money and it’s as blatant a disregard for the law as there could be.”