National Review
Biden sets a dangerous precedent
President Joe Biden’s recent executive order to expand food aid to US households, while well-intentioned, represents a substantial overrun of executive power and a blatant attempt to ignore Congress’s intent. If successful, this dangerous precedent would open the door to major expansions of the social safety net without congressional approval. Congress must resist the president’s attempts to undermine the intent of existing legislation. Less than a week after Biden’s presidency, the new government issued a series of executive orders targeting COVID-19’s emergency economic relief. One of those orders is to expand food assistance through the Supplemental Nutrition Assistance Program (SNAP) or food stamps. In it, President Biden instructed the Department of Agriculture (USDA) to “take immediate action to make it easier for the most affected families to enroll and claim more generous benefits in essential food and nutritional assistance.” In reality, the executive order asks a federal agency – the USDA – to deliberately misinterpret the Families First Act and undermine Congress’ constitutional authority over the legislative process. The Families First Act, passed in March 2020, clearly outlined that states could request waivers from the Department of Agriculture to issue emergency allocations to SNAP households “not exceeding the applicable maximum monthly allocation for household size.” Normally, 60 percent of households enrolled with SNAP do not receive the maximum benefit because they have income from other sources – such as income – that they can use to buy food. The emergency allocations recognized that millions of people lost jobs or had other employment interruptions when the pandemic hit, and that those enrolled with SNAP were at particular risk of job loss in the early aftermath of the pandemic. Rather than requiring SNAP households to report a job or income change to their government agency and wait for the bureaucrats to recalculate their benefits, the emergency allocations gave each SNAP recipient the maximum allowed. Admittedly, this was not a very focused effort. Some families got a boost in SNAP dollars without a change in family income or financial circumstances. But the immediate economic shock caused by the pandemic and the employment instability that continues today necessitated an equally effective policy response. The Department of Agriculture, led by President Trump, had approved emergency allocation plans for all 50 states, the District of Columbia, Guam and the U.S. Virgin Islands – but only in accordance with the law. The department has extended these emergency grant waivers multiple times, most recently through January 2021. The USDA – and Congress itself – also offered states flexibility in the aftermath of the pandemic. According to federal government data, all the efforts outlined above have increased SNAP benefits over the past fiscal year by more than 40 percent, with more than $ 31 billion in additional spending compared to FY 2019. There are class action lawsuits filed in Pennsylvania and California by people who disagree with the USDA’s interpretation of the law: that regular SNAP plus emergency grants cannot provide benefits beyond the maximum benefit level. Lawyers for the lawsuits allege that the law allows the USDA to approve emergency allocations for the amount of the maximum benefit, which would mean that households could receive the maximum SNAP benefit plus the maximum emergency grant – essentially doubling the benefit amounts. A federal judge in California agreed with the USDA, while the case is ongoing in Pennsylvania. The Biden administration’s executive order is encouraging the USDA to similarly misinterpret the 2020 law. The legal text is not ambiguous. It’s hard to imagine Congress being more clear than “providing for temporary food needs that do not exceed the applicable maximum monthly allocation for household size.” If Congress had wanted to give people more than the SNAP cap, it would have. In fact, Congress did just that – expanding the benefits by 15 percent in the COVID-19 aid package passed last month. If the Biden administration succeeds, it will open the door to a number of executive actions aimed at increasing the safety net without action from Congress. If political appointees in the Biden administration do not feel constrained by law, we will see greater benefits for an increasing number of people. Such action not only undermines the integrity of the social safety net by going around Congress, it ignores the separation of powers enshrined in our republic’s founding documents. The American public has largely supported Congress’s efforts to provide economic assistance to families in difficulty. Let’s keep that authority in place.