Oops. District Court in DC says USDA’s state SNAP waivers are illegal

Yesterday, a US District Court in the District of Columbia ruled that the USDA violated its own laws when it approved SNAP food restriction waivers allowing states to ban purchases of sodas and some other foods using their Electronic Benefit Cards (they can still buy those foods using their own money).

The decision makes riveting reading, as shown in these excerpts.

USDA used the wrong statute

The section of the statute the Secretary relies upon as authorization to approve the projects at issue, 7 U.S.C. § 2026(b), does not cover projects aimed towards improving the health of SNAP recipients, and the agency sidestepped the section of the statute that does address those projects, section 2026(k) – which sets out strict requirements they must meet – entirely.

USDA waived more than was allowed

With her solicitation and approval of the pilot projects in this case, the Secretary purports to waive not just a mere administrative or technical obstacle, but the very definition of “food” as it was laid down by Congress.  Neither the USDA nor the states can force this square peg into a round hole to avoid the plain language of the statute and the requirements of 2026(k).

USDA did not follow its own procedures

Defendants also failed to abide by the notice requirement of their own regulation, 7 C.F.R. § 282.1(b), which requires the USDA to post notice of pilot projects in the Federal Register thirty days before implementation if they are likely to have a significant impact on the public.  The agency’s terse statement that the pilot projects would not have a significant impact 3 on the public is entitled to little deference and it is directly contrary to the facts in the administrative record.

These reasons are strictly procedural

The Court’s analysis should not be taken as a comment on whether the pilot projects are a good idea or not.  That is a question of policy that is not before the Court.  The federal defendants and the states may have a genuine desire to improve the health of SNAP households by encouraging healthy choices at the store, and they can take lawful steps to meet those goals.  But what they cannot do is violate the law and their own regulations along the way.

The waivers are now remanded (sent back to USDA) and vacated (annulled).  The judgment says orders to USDA will follow.

In the meantime, Jerry Hagstrom reports that the USDA is downgrading administrative oversight of SNAP.

The Trump administration ended the Agriculture Department mission area status of the federal nutrition programs as part of its broad reorganization, according to a little-noticed explanation published alongside the establishment of the Food and Nutrition Administration.

Eliminating the mission area also apparently allows for the elimination of the positions of agriculture undersecretary for food, nutrition and consumer services and the deputy administrator.

What does this mean?  As Hagstrom explains,

A House Democratic aide said that aligning the structure of the nutrition programs with other benefit programs would make it easier to move FNA to HHS if the Trump administration should try to follow the Project 2025 guidance.

Cindy Long, a deputy undersecretary for food, nutrition and consumer services in the Biden administration and before that the administrator of Food and Nutrition Service, said in an email, “This change would represent an abdication of the secretary’s responsibility for FNS programs, which comprise over 75% of the USDA budget.” (Translation: this means SNAP).

As I’ve said previously, the USDA’s SNAP waivers have nothing to do with health, but everything to do with getting more people off of SNAP rolls.

Why do I think this?  Here’s the headline from ProPublica: More Than 770,000 Children Are No Longer Receiving SNAP Benefits After Trump Changes Federal Food Program.

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Thanks to Cathy Nonas, Jerry Mande, and Jerry Hagstrom for providing documents and info for this post.