Case 1:20-cv-00119-BAH Document 14-1 Filed 01/27/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DISTRICT OF COLUMBIA, et al.,
Plaintiffs,
v.

No. 20-cv-119 (BAH)

U.S. DEPARTMENT OF AGRICULTURE, et
al.,
Defendants.

BREAD FOR THE CITY, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF AGRICULTURE, et
al.,
Defendants.

BRIEF OF U.S. HOUSE OF REPRESENTATIVES
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTEREST OF AMICUS CURIAE..................................................................................................1
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................4
I.

II.

THE NEW RULE IS CONTRARY TO THE PURPOSE OF SNAP
AND THE 2018 FARM BILL, WHICH EFFECTIVELY RATIFIED
LONGSTANDING AGENCY PRACTICE IN ADMINISTERING
THE PROGRAM ...................................................................................................4
A.

The Rule is Contrary to the Purpose of SNAP ............................................4

B.

The New Rule Improperly Constrains Historical State Discretion ............12

C.

In 2018, A Bipartisan Congress Rejected Attempts to Include More
Stringent Work Requirements in SNAP, Effectively Ratifying the
Way USDA Had Long Been Administering the Program .........................19

IN DIVERGING FROM SNAP’S PURPOSE, STRUCTURE, AND
ADMINISTRATION, THE RULE WILL CAUSE IRREPARABLE
HARM ...................................................................................................................21

CONCLUSION ..............................................................................................................................25

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TABLE OF AUTHORITIES
Cases
Amalgamated Transit Union v. Skinner,
894 F.2d 1362 (D.C. Cir. 1990) ................................................................................................ 13
Booth v. McManaman,
830 F. Supp. 2d 1037 (D. Haw. 2011) ...................................................................................... 25
Garnett v. Zeilinger,
313 F. Supp. 3d 147 (D.D.C. 2018) .......................................................................................... 25
Goldberg v. Kelly,
397 U.S. 254 (1970) .............................................................................................................. 4, 12
Haskins v. Stanton,
794 F.2d 1273 (7th Cir. 1986) .................................................................................................. 25
International Long Term Care, Inc. v. Shalala,
947 F. Supp. 15 (D.D.C. 1996) ................................................................................................. 25
Johnson v. Shalala,
2 F.3d 918 (9th Cir. 1993) ........................................................................................................ 25
Kildare v. Saenz,
325 F.3d 1078 (9th Cir. 2003) .................................................................................................. 25
NLRB v. Bell Aerospace Co. Division of Textron, Inc.,
416 U.S. 267 (1974) .................................................................................................................. 20
Oceana, Inc. v. Locke,
670 F.3d 1238 (D.C. Cir. 2011) ................................................................................................ 21
Paxton v. Secretary of Health & Human Services,
856 F.2d 1352 (9th Cir. 1988) .................................................................................................. 25
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) .................................................................................................................. 21
Wisconsin Central Ltd. v. United States,
138 S. Ct. 2067 (2018) .............................................................................................................. 21
Statutes
7 U.S.C. § 2011 ............................................................................................................................... 6
7 U.S.C. § 2015(o) .................................................................................................................... 6, 12
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7 U.S.C. § 2015(o)(4)(A) .................................................................................................... 7, 13, 16
7 U.S.C. § 2015(o)(6)(A)(ii) ......................................................................................................... 14
7 U.S.C. § 2015(o)(6)(G) ........................................................................................................ 14, 18
Agricultural Act of 2014,
Pub. L. No. 113-79, 128 Stat. 649 (2014) ................................................................................. 12
Agriculture Improvement Act of 2018,
Pub. L. No. 115-334, 132 Stat. 4490 (2018) ..................................................................... 1, 9, 12
Balanced Budget Act of 1997,
Pub. L. No. 105-33, 111 Stat. 251 (1997) ............................................................................. 7, 13
Food and Agriculture Act of 1977,
Pub. L. No. 95-113, 91 Stat. 913 (1977) ..................................................................................... 6
Food, Conservation, and Energy Act of 2008,
Pub. L. No. 110-246, 122 Stat. 1651 (2008) ............................................................................. 12
Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Pub. L. No. 104-193, 110 Stat. 2105 (1996) ......................................................................... 6, 12
Farm Security and Rural Investment Act of 2002,
Pub. L. No. 107-171, 116 Stat. 134 (2002) ............................................................................... 12
The Food Stamp Act of 1964,
Pub. L. No. 88-525, 78 Stat. 703 (1964) ..................................................................................... 6
Federal Regulations
7 C.F.R. § 273.24(f)(2) ................................................................................................................. 16
7 C.F.R. § 273.24(f)(6) ................................................................................................................. 14
Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without
Dependents, 84 Fed. Reg. 66,782 (Dec. 5, 2019)
(to be codified at 7 C.F.R. pt. 273) ............................................. 3, 10, 11, 12, 14, 15, 16, 17, 18
Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without
Dependents, Notice of Proposed Rulemaking, 84 Fed. Reg. 980 (Feb. 1, 2019)
(to be codified at 7 C.F.R. pt. 273) ........................................................................................... 10
Legislative Materials
142 Cong. Rec. 17,782 (1996) ...................................................................................................... 13
164 Cong. Rec. H10116 (daily ed. Dec. 12, 2018) ......................................................................... 9
iii

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Examining the Proposed ABAWD Rule and Its Impact on Hunger and Hardship: Hearing Before
the Subcomm. on Nutrition, Oversight, and Dep’t Operations of the H. Comm. on Agric.,
116th Cong. (2019) ................................................................................................................... 22
H. Rept. No. 104-725 (1996) (Conf. Rept.) .................................................................................. 13
H. Rept. No. 115-1072 (2018) (Conf. Rept.) ...................................................................... 9, 15, 18
H.R. 2, 115th Cong. § 4015 (2018)......................................................................................... 15, 17
Past, Present, and Future of the Supplemental Nutrition Assistance Program: Hearing Before
the Subcomm on Nutrition of the H. Comm. on Agric.,
pt. 1, 114th Cong (2015) ............................................................................................................. 2
Past, Present, and Future of SNAP: Addressing Special Populations: Hearing Before the
Subcomm. on Nutrition of the H. Comm. on Agric., pt. 4, 114 Cong. (2016)........................... 23
Past, Present, and Future of SNAP: Breaking the Cycle: Hearing Before the Subcomm. on
Nutrition of the H. Comm. on Agric., pt. 3, 114 Cong. (2015) ................................................. 23
Program Integrity for the Supplemental Nutrition Assistance Program: Joint Hearing Before the
Subcomm. On Healthcare, Benefits, and Administrative Rules, and the Subcomm. on
Intergovernmental Affairs of the Comm. on Oversight and Government Reform,
115 Cong. (2018) ...................................................................................................................... 24
Other Authorities
1977 Cong. Q. Almanac 457........................................................................................................... 6
Bread for the World Statement on the 2018 Farm Bill (June 22, 2018),
https://www.bread.org/news/bread-world-statement-2018-house-farm-bill-0 ....................... 8, 9
Brian Roewe, Catholics Criticize House Farm Bill That Includes Benefit Cuts, Work
Requirements: Senate Version Leaves SNAP Largely Intact, National Catholic Reporter (June
22, 2018), https://www.ncronline.org/news/people/catholics-criticize-house-farm-billincludes-benefit-cuts-work-requirements ................................................................................... 9
Children’s Defense Fund, A Comparison of the SNAP Provisions in the 2018 House and Senate
Farm Bills (July 2018), https://www.childrensdefense.org/wp-content/uploads/2018/08/2018farm-bill-comparison.pdf ............................................................................................................ 8
Exec. Order 13,828, Reducing Poverty in America by Promoting Opportunity and Economic
Mobility, 83 Fed. Reg. 15,941 (Apr. 10, 2018),
https://www.whitehouse.gov/presidential-actions/executive-order-reducing-poverty-americapromoting-opportunity-economic-mobility/ ............................................................................. 11
Food and Nutrition Service, A Short History of SNAP, USDA (Sept. 11, 2018),
https://www.fns.usda.gov/snap/short-history-snap ..................................................................... 5
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Food and Nutrition Service, Supplemental Nutrition Assistance Program (SNAP): Program
Administration, USDA (Apr. 17, 2019), https://www.fns.usda.gov/snap/admin ..................... 19
Margarette Purvis, Food Bank for New York City, The SNAP Rule Will Cause More Hunger
Than We Can Handle, N.Y. Times (Dec. 12, 2019),
https://www.nytimes.com/2019/12/12/opinion/trump-snap-food-stamps.html ........................ 24
Mark A. McMinimy et al., Cong. Research Serv., R45275, The House and Senate 2018 Farm
Bills (H.R. 2): A Side-by-Side Comparison with Current Law (July 27, 2018),
https://fas.org/sgp/crs/misc/R45275.pdf ..................................................................................... 8
Mark A. McMinimy et al., Cong. Research Serv., R45525, The 2018 Farm Bill (P.L. 115-334):
Summary and Side-by-Side Comparison (Feb. 22, 2019),
https://fas.org/sgp/crs/misc/R45525.pdf ..................................................................................... 9
Ohio Association of Foodbanks, Franklin County Ohio Work Experience Program,
Comprehensive Report: Able-Bodied Adults Without Dependents (2014-2015),
http://ohiofoodbanks.org/wep/WEP-2013-2015-report.pdf...................................................... 22
President Clinton Reconciliation Act Signing Statement (Aug. 22, 1996),
https://www.govinfo.gov/content/pkg/WCPD-1996-08-26/pdf/WCPD-1996-08-26-Pg1487.pdf
.................................................................................................................................................... 7
Press Release No. 0277.18, USDA, USDA to Restore Original Intent of SNAP: A Second
Chance, Not a Way of Life (Dec. 20, 2018), https://www.fns.usda.gov/news-item/usdarestore-original-intent-snap-second-chance-not-way-life ......................................................... 10
Press Release, Pelosi Statement on Trump Administration Rule to Slash SNAP Benefits (Dec. 4,
2019), https://www.speaker.gov/newsroom/12419-0 ............................................................... 21
Randy A. Aussenberg & Kara C. Billings, Cong. Research Serv., 2018 Farm Bill Primer: SNAP
and Nutrition Title Programs (Jan. 30, 2019),
https://fas.org/sgp/crs/misc/IF11087.pdf .................................................................................... 2
Robert Greenstein, Commentary: SNAP’s Bipartisan Legacy Can Serve as a Model, Center on
Budget and Policy Priorities (Sept. 26, 2017),
https://www.cbpp.org/sites/default/files/atoms/files/9-26-17fa-commentary.pdf ...................... 6
Sheila Fleischhacker et al., Legislative and Executive Branch Developments Affecting the United
States Department of Agriculture Supplemental Nutrition Assistance Program,
15 J. Food L. & Pol’y 131 (2019) ............................................................................................... 5
U.S. Gen. Accounting Office, GAO/RCED-00-5, Food Stamp Program: How States Are Using
Federal Waivers of the Work Requirement, Report to the Chairman, Committee on the
Budget, House of Representatives (1999),
https://www.gao.gov/archive/2000/ rc00005.pdf ..................................................................... 17

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USDA Food and Nutrition Service, SNAP Guide to Supporting Requests to Waive the Time Limit
for ABAWDs (Dec. 30, 2019), https://www.fns.usda.gov/snap/ABAWD/guide-to-supporttime-limit-waive-requests ......................................................................................................... 20
USDA, Guidance for States Seeking Waivers for Food Stamp Limits (Dec. 3, 1996), https://fnsprod.azureedge.net/sites/default/files/media/file/HistoricalPolicyDocument_GuidanceforStates
SeekingWaiversforFoodStampLimits_December1996.pdf ...................................... 7, 16, 19, 20
USDA, Supplemental Nutrition Assistance Program - Guide to Supporting Requests to Waive
the Time Limit for Able-Bodied Adults without Dependents (ABAWD) (Dec. 2, 2016),
https://fns-prod.azureedge.net/sites/default/files/snap/SNAP-Guide-to-Supporting-Requeststo-Waive-the-Time-Limit-for-ABAWDs.pdf ........................................................................... 19

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INTEREST OF AMICUS CURIAE1
Amicus curiae is the United States House of Representatives (House), an institution with
a strong interest in the appropriate administration of the Supplemental Nutrition Assistance
Program (SNAP) and the availability of critical food and nutritional assistance for those most in
need. In 2018, Congress enacted, and the President signed, the Agriculture Improvement Act of
2018, Pub. L. No. 115-334, 132 Stat. 4490 (2018 Farm Bill), following rigorous debate and
deliberate consideration and rejection of more stringent eligibility requirements for SNAP
benefits. As such, the House is ideally positioned to address the history and rationale behind this
critical food and nutritional assistance safety net and the individual and societal benefits created
by the program. Indeed, SNAP was the topic of more than 20 congressional hearings with nearly
100 witnesses over a three-year span from 2015 through 2017. The House thus has particular
knowledge about and a substantial interest in whether the final rulemaking of the U.S.
Department of Agriculture (USDA or the Department) is consistent with the 2018 Farm Bill.
INTRODUCTION
SNAP has long been an essential antihunger and nutrition program providing crucial
support for millions of Americans in need. Since the 1960s, SNAP benefits, previously known
as “food stamps,” have served as a bulwark against malnutrition and hunger in the United States,
improving the health of countless low-income households. The program has been diverse both
in its geography, covering all fifty states, the District of Columbia, and U.S. territories, and in its
recipients, benefitting individuals of various races and ethnicities throughout rural and urban
communities alike. SNAP beneficiaries nonetheless all share a profound level of need and food

1

No person other than amicus and its counsel assisted in or made a monetary
contribution to the preparation or submission of this brief.

1

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insecurity. Indeed, nearly all SNAP benefits go to those households trying to survive on incomes
below the poverty line. It is no surprise then that SNAP has been recognized as a critical
program for lengthening and strengthening the lives of low-income people in the United States.2
The advantages of SNAP benefits are numerous, with SNAP combating food insecurity,
erosion of public health, and family instability. These harms compound over time and manifest
themselves through nutritional deficiencies, stunted physical development, physical and mental
illness and disease, and diminished academic and job performance. Despite the historic
contributions of SNAP to the well-being of individuals, their families, and their communities, the
recent USDA rulemaking contravenes historical practices and the long-standing administration
of SNAP by significantly narrowing the class of currently qualifying beneficiaries.
Since 1973, Congress has reauthorized the Food Stamp Program (and later, SNAP)
through the enactment of Farm Bills.3 The Nutrition title constitutes about 76 percent of the
2018 Farm Bill spending, with SNAP accounting for the “vast majority[.]”4 Given the nation’s
significant investment in SNAP, it is understandably the subject of much attention and debate by
Members of Congress. Nevertheless, following such debate, Congress has reaffirmed the
importance of SNAP time and time again, recognizing, on a bipartisan basis, the significance of
the program for the livelihood of Americans and effectively adopting USDA’s longstanding
administration of the program.
2

See, e.g., The Past, Present, and Future of the Supplemental Nutrition Assistance
Program: Hearing Before the Subcomm. on Nutrition of the H. Comm. on Agric., pt. 1, 114th
Cong. 22-43 (2015) (statement of Robert Greenstein, President, Center on Budget and Policy
Priorities).
3

See Randy A. Aussenberg & Kara C. Billings, Cong. Research Serv., 2018 Farm Bill
Primer: SNAP and Nutrition Title Programs 1 (Jan. 30, 2019), https://fas.org/sgp/crs/
misc/IF11087.pdf.
4

Id.
2

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Most recently, Congress enacted the 2018 Farm Bill, endorsing the continued
implementation of SNAP and the crucial support it provides beneficiaries through the existing
administration and practices of the program. After the President signed the 2018 Farm Bill into
law, however, the USDA Food and Nutrition Service (FNS) issued a rule subverting the program
and restricting the availability of benefits for “able-bodied” adults without dependents (ablebodied adults)—those without custodial children or other dependents living with them and/or
who fail to be categorized as “disabled” because they do not receive federal disability benefits.
See Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without
Dependents, 84 Fed. Reg. 66,782 (Dec. 5, 2019) (to be codified at 7 C.F.R. pt. 273) (the Rule).
This Rule targets the use of SNAP benefits during periods of lower unemployment for
able-bodied adults. Under the statute, SNAP benefits for able-bodied adults generally are time
limited, and able-bodied adults may not receive benefits for more than three months in a 36month period, unless certain work requirements are met. Through several key provisions,
Congress has provided states with the flexibility to waive or exempt individuals from this ablebodied adults time limit based on local conditions. The Rule, currently scheduled to take effect
April 1, 2020, makes it more difficult for states to waive the able-bodied adults time limit.
In enacting the 2018 Farm Bill, however, Congress considered and rejected the very
restrictions to be imposed by this Rule. Following robust debate, Congress achieved a bipartisan
compromise, rejecting the proposed tightening of work requirements and effectively ratifying the
means and methods by which SNAP has long been administered. Moreover, the Rule
specifically constrains the discretion historically reserved for the states with respect to the SNAP
work requirements. By doing so, the Rule effects an end-run around the 2018 Farm Bill. This
unlawful action by USDA will cause irreparable harm to those beneficiaries SNAP is intended to

3

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support, with the Rule projected to eliminate critical benefits for approximately 700,000 of the
most vulnerable Americans. This Court should not countenance a rule that is so contrary to
established law and punishes low-income Americans, causing irreparable injury.
ARGUMENT
I.

THE NEW RULE IS CONTRARY TO THE PURPOSE OF SNAP AND THE 2018
FARM BILL, WHICH EFFECTIVELY RATIFIED LONGSTANDING AGENCY
PRACTICE IN ADMINISTERING THE PROGRAM
The historical purpose of the Food Stamp Program—renamed SNAP in 2008—has been

to provide crucial nutritional assistance to low-income Americans. Congress advanced that
purpose again in the 2018 Farm Bill by rejecting provisions that would have restricted the
discretion Congress and USDA have long afforded the states in administering SNAP. In doing
so, Congress reinforced the principle embodied in the law and USDA’s prior longstanding
approach that the states are best positioned to implement SNAP at the local level as Congress
designed.
USDA’s recent attempt to circumvent the 2018 Farm Bill by removing discretion from
the states and disregarding Congress’s ratification of agency practice is thus contrary to law. The
Rule reflects a flagrant and misguided effort by USDA to undertake action not authorized by
and, in fact, unequivocally rejected by Congress in passing the 2018 Farm Bill. To accomplish
this improper goal, the Administration seeks to do what courts have widely and unambiguously
rejected—enact an agenda by regulatory fiat that a bipartisan, bicameral Congress already has
refused in legislation.
A.

The Rule is Contrary to the Purpose of SNAP

As the Supreme Court has recognized, “[f]rom its founding the Nation’s basic
commitment has been to foster the dignity and well-being of all persons within its borders.”
Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970). In the spirit of this founding commitment, there
4

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is “an extensive history of using policy and programmatic approaches to ensure individuals and
families in most need have access to nutritious and safe foods and beverages.”5 SNAP has been
an integral part of those efforts as the “nation’s largest program in the domestic food security and
nutrition safety net” for more than four decades.6 The Rule would upend this important legacy.
The USDA traces the history of the Food Stamp Program as far back as 1939, when the
nutritional needs of low-income people drove the Federal Government to experiment with ways
to provide support to families struggling to obtain sufficient food and nutrition. “The program
operated by permitting people on relief to buy orange stamps equal to their normal food
expenditures. For every $1 worth of orange stamps purchased, 50 cents worth of blue stamps
were received. Orange stamps could be used to buy any food. Blue stamps could only be used
to buy food determined by the Department to be surplus.”7 That program ended in 1943,
followed by pilot programs in the 1960s, and finally, in 1964, the Food Stamp Act.8
Congress formally created the Food Stamp Program in 1964, to address the nutritional
needs of low-income Americans. As articulated in the Declaration of Policy, the Food Stamp
Act intended “to promote the general welfare, that the Nation’s abundance of food should be
utilized cooperatively by the States, the Federal Government, and local governmental units to the
maximum extent practicable to safeguard the health and well-being of the Nation’s population

5

Sheila Fleischhacker et al., Legislative and Executive Branch Developments Affecting
the United States Department of Agriculture Supplemental Nutrition Assistance Program, 15 J.
Food L. & Pol’y 131, 131-32 (2019) (citing FNS website pages, “A Short History of SNAP” and
“FNS Strategic Priorities” (website addresses omitted)).
6

Id. at 133.

7

See Food and Nutrition Service, A Short History of SNAP, USDA (Sept. 11, 2018),
https://www.fns.usda.gov/snap/short-history-snap.
8

Id.
5

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and raise levels of nutrition among low-income households.” The Food Stamp Act of 1964, Pub.
L. No. 88-525, § 2, 78 Stat. 703, 703 (1964). Congress defines the goals of the program without
material difference to this day. See 7 U.S.C. § 2011 (Congressional Declaration of Policy) (“to
promote the general welfare, [and] to safeguard the health and well-being of the Nation’s
population by raising levels of nutrition among low-income households”).
Underscoring the purpose of SNAP to provide nutrition for those in need, the Food and
Agriculture Act of 1977 struck the requirement that recipients purchase their food stamps. Pub.
L. No. 95-113, 91 Stat. 913 (1977) (the 1977 Food Stamp Act); see 1977 Cong. Q. Almanac 457.
“Proponents of free food stamps [had] argued that the purchase requirement had been the single
biggest barrier to participation by those most in need because the very poor could not scrape
together the money needed to buy in.” Id. And Congress responded. As a chief staffer for the
Secretary of Agriculture at the time recalls, “[t]he measure that became law [in 1977] was the
product of a bipartisan effort between the Administration and Congress, and between both parties
on Capitol Hill, reflecting the broad bipartisan support that food stamps has had for much of its
history.”9
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the
Reconciliation Act), Pub. L. No. 104-193, § 824, 110 Stat. 2105, 2323-24 (1996), added
subsection (o) to the statute, changing the SNAP eligibility requirements such that certain
unemployed adults (those between ages 18 to 49, with no disability and without dependent
children, who did not fulfill certain work requirements) were limited to three months of benefits
in a 36-month period. 7 U.S.C. § 2015(o). In the Reconciliation Act, however, Congress also

9

Robert Greenstein, Commentary: SNAP’s Bipartisan Legacy Can Serve as a Model 1,
Center on Budget and Policy Priorities (Sept. 26, 2017), https://www.cbpp.org/sites/default/
files/atoms/files/9-26-17fa-commentary.pdf.
6

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provided for accompanying waivers at the state level related to unemployment levels and
insufficient numbers of jobs. See id. § 2015(o)(4)(A).
Congress recognized that states, through their attention to and investment in local
conditions, were essential partners in ensuring that the purpose of SNAP was realized.10 The
following year, Congress re-affirmed and expanded the important role of states in administering
food stamps by providing exemptions through the Balanced Budget Act of 1997, Pub. L. No.
105-33, 111 Stat. 251 (1997), giving states additional flexibility to determine when and how to
extend food stamp eligibility to their residents.
With the 2018 Farm Bill, Congress yet again reaffirmed the purpose of SNAP to provide
nutrition for those most in need, largely maintaining the program without significant changes to
the work-related requirements, waivers, or exemptions. On June 21, 2018, the House passed
H.R. 2, the Agriculture and Nutrition Act of 2018, by a slim margin of 213 to 211, and, on
June 28, 2018, the Senate passed its own version by a vote of 86 to 11.
The House and Senate versions differed significantly regarding the work-related
requirements. While both bills reauthorized SNAP for five years, and included measures to
support error and fraud detection, the House version “include[d] major changes to work

10

See, e.g., President Clinton Reconciliation Act Signing Statement (Aug. 22, 1996),
https://www.govinfo.gov/content/pkg/WCPD-1996-08-26/pdf/WCPD-1996-08-26-Pg1487.pdf
(“This Act gives States the responsibility that they have sought to reform the welfare system.
This is a profound responsibility, and States must face it squarely.”); see also USDA, Guidance
for States Seeking Waivers for Food Stamp Limits 1 (Dec. 3, 1996), https://fnsprod.azureedge.net/sites/default/files/media/file/HistoricalPolicyDocument_GuidanceforStatesSe
ekingWaiversforFoodStampLimits_December1996.pdf [hereinafter 1996 USDA Guidance]
(noting that USDA “will allow States broad discretion to decide if a waiver request is appropriate
for a particular locale or situation”).

7

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requirements, while the Senate bill would make changes that are minor by comparison.”11 In
assessing the proposed changes, the Congressional Budget Office estimated that, under the
House Bill, by FY2028, 1.2 million SNAP recipients in an average month would no longer be
eligible.12
Not surprisingly, the House version of H.R. 2 faced strenuous objections and unfavorable
comparisons to the starkly different bipartisan Senate bill, with the latter’s provisions more
faithfully echoing the historical purpose of SNAP. For example, prominent non-profit
organizations pointed out that the House bill would mean significant cuts to SNAP, owing to
more stringent work requirements, which would endanger food security for millions of people.
The Senate bill, by contrast, “maintain[ed] SNAP’s current benefit levels while reducing
barriers to enrollment, strengthening employment opportunities for beneficiaries, and improving
quality and integrity in the program’s operation.”13 Concerns were raised that, while millions of
people under the House bill would be losing their benefits, “[m]uch of this money would be used
to pay for a new SNAP bureaucracy to enforce work requirements.”14 Noting that the Farm Bill

11

Mark A. McMinimy et al., Cong. Research Serv., R45275, The House and Senate 2018
Farm Bills (H.R. 2): A Side-by-Side Comparison with Current Law (Summary) (July 27, 2018),
https://fas.org/sgp/crs/misc/R45275.pdf; see also id. at 113-14.
12

See id. at 19.

13

Children’s Defense Fund, A Comparison of the SNAP Provisions in the 2018 House
and Senate Farm Bills 1 (July 2018), https://www.childrensdefense.org/wpcontent/uploads/2018/08/2018-farm-bill-comparison.pdf.
14

Bread for the World Statement on the 2018 Farm Bill (June 22, 2018),
https://www.bread.org/news/bread-world-statement-2018-house-farm-bill-0.

8

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was “[t]raditionally . . . a bipartisan bill[,]” nonprofits urged that the bipartisan Senate bill—
without the restrictive SNAP amendments—prevail.15
Amidst much debate, the Conference Committee ultimately rejected the House’s most
stringent modifications and generally retained the SNAP work-related provisions.16 Congress
then enacted the 2018 Farm Bill on a bipartisan basis. See, e.g., 164 Cong. Rec. H10116 (daily
ed. Dec. 12, 2018) (statement of Rep. Jim McGovern) (acknowledging that the 2018 Farm Bill
was a “good, bipartisan product” and that House Agricultural Chairman Michael Conaway
“recognized the importance of getting a farm bill over the finish line this year”).
The 2018 Farm Bill reauthorized SNAP through 2023, incorporating various changes,
including provisions to address error and fraud in SNAP, limit the fees charged by electronic
transfer benefit processors, and require online acceptance of SNAP benefits across the country.17
All of these changes are consistent with previous iterations of the program. So, too, are the 2018
Farm Bill’s changes to the work requirements in SNAP, which include an expansion of the
employment and training programs states can provide.18 Thus, Congress reaffirmed its

15

Id.; see also Brian Roewe, Catholics Criticize House Farm Bill That Includes Benefit
Cuts, Work Requirements: Senate Version Leaves SNAP Largely Intact, National Catholic
Reporter (June 22, 2018), https://www.ncronline.org/news/people/catholics-criticize-house-farmbill-includes-benefit-cuts-work-requirements.
16

H. Rept. No. 115-1072 (2018) (Conf. Rept.); Pub. L. No. 115-334, 132 Stat. 4490
(2018); see also Mark A. McMinimy et al., Cong. Research Serv., R45525, The 2018 Farm Bill
(P.L. 115-334): Summary and Side-by-Side Comparison, 157-59 (Feb. 22, 2019),
https://fas.org/sgp/crs/misc/R45525.pdf (table comparing the prior law/policy, the House bill
(H.R. 2), the Senate bill (H.R. 2), and the 2018 Farm Bill, as enacted).
17

See Mark A. McMinimy et al., Cong. Research Serv., Pub. No. R45525, The 2018
Farm Bill (P.L. 115-334): Summary and Side-by-Side Comparison (Summary) (Feb. 22, 2019),
https://fas.org/sgp/crs/misc/R45525.pdf.
18

Id. at Summary & 157-60.

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commitment to SNAP and made improvements to the program that Congress decided were
necessary.
Despite Congress’s historical commitment to ensuring nutrition for those most in need,
and the longstanding shared responsibility the Federal Government and states have maintained in
administering food stamps, USDA quickly introduced a proposed rule unambiguously hostile to
the purpose of SNAP and “intended to move more able-bodied recipients of [SNAP] benefits to
self-sufficiency through the dignity of work.”19 The proposal sought to accomplish this goal by
curtailing states’ discretion over waivers of the able-bodied adults time limit.
Although USDA received more than 100,000 comments on the Proposed Rule, most in
opposition, see 84 Fed. Reg. at 66,783-84, the Department nevertheless adopted it on December
5, 2019.
As the State Plaintiffs have highlighted, the Rule would:
•

“Eliminat[e] States’ Discretion to determine the geographic scope of the
areas for which they request waivers by restricting waivers to areas
designated as LMAs [Labor Market Areas] by DOL [Department of
Labor] and effectively eliminat[e] statewide waivers, 84 Fed. Reg. at
66793-98;”

•

“Curtail[] the types of data on which States can rely for their waiver
requests by requiring States to rely exclusively on unemployment data
absent extraordinary circumstances, 84 Fed. Reg. at 66790-91;”

•

“Set[] an unemployment rate floor for States that seek waivers even
where an area’s unemployment rate is 20 percent or more above the
national average, 84 Fed. Reg. at 66784-89;”

19

Press Release No. 0277.18, USDA, USDA to Restore Original Intent of SNAP: A
Second Chance, Not a Way of Life (Dec. 20, 2018), https://www.fns.usda.gov/news-item/usdarestore-original-intent-snap-second-chance-not-way-life; Supplemental Nutrition Assistance
Program: Requirements for Able-Bodied Adults Without Dependents, Notice of Proposed
Rulemaking, 84 Fed. Reg. 980 (Feb. 1, 2019) (to be codified at 7 C.F.R. pt. 273) (“Proposed
Rule”).
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•

“Eliminat[e] the ability of a State to qualify for a waiver if it is designated
as a Labor Surplus Area by DOL, 84 Fed. Reg. at 66799-[00][;]”

•

“[E]liminate[] States’ Ability to carry exemptions over from year to year.
84 Fed. Reg. at 66802-07[;]”

•

“[E]liminate[] use of extended unemployment benefits to show entitlement
to a waiver[; and]”

•

“[P]rohibit[] States from seeking waivers for substate areas that are not
LMAs.”

Compl. at 20, District of Columbia, et al. v. USDA, et al. (filed Jan. 16, 2020).
Individually and collectively, these Rule provisions severely undermine the purpose of
SNAP and ignore that many people affected by the Rule will struggle to feed themselves absent
the critical support the program provides. Contrary to SNAP’s purpose to raise levels of
nutrition, the Rule will result in an expected 688,000 people losing their eligibility for SNAP, see
84 Fed. Reg. at 66,807, with no expectation that these individuals will otherwise be able to
provide for their own nutritional needs. Equally troubling, the Rule would hamstring SNAP in
times of economic downturn. The Rule strikes a severe blow to the program, handcuffing states
and their ability to get assistance to those most in need.
The Rule relies on Executive Order 13,828, signed by President Trump on April 10,
2018.20 According to the Rule, the Executive Order drove USDA to conduct a review of
regulations and policies regarding able-bodied adults. 84 Fed. Reg. at 66,783. Notably,
however, the Executive Order does not direct USDA to undermine the fundamental purpose of
SNAP, which has consistently and very recently been reaffirmed by Congress. The Rule’s

20

See Exec. Order 13,828, Reducing Poverty in America by Promoting Opportunity and
Economic Mobility, 83 Fed. Reg. 15,941 (Apr. 10, 2018), https://www.whitehouse.gov/
presidential-actions/executive-order-reducing-poverty-america-promoting-opportunityeconomic-mobility/.
11

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elimination of states’ discretion to respond to the nutritional needs of low-income people within
their jurisdiction, of course, does just that. By no longer permitting states to respond to their
residents’ basic needs based on local conditions, the Rule turns the nation’s back on its “basic
commitment . . . to foster the dignity and well-being” of its people. Goldberg, 397 U.S. at 26465.
B.

The New Rule Improperly Constrains Historical State Discretion

The Rule drastically curtails the flexibility historically reserved for the states with respect
to implementation of SNAP work requirements. Beginning with the Reconciliation Act more
than two decades ago, Congress authorized and then has repeatedly re-authorized work
requirements in 7 U.S.C. § 2015(o) that balance the desire to encourage additional personal
responsibility and self-sufficiency with the needs of the country’s most vulnerable citizens.21
USDA itself acknowledged that “[t]he time limit and work requirement for [able-bodied adults]
enacted by [the Reconciliation Act] has been maintained by Congress through several
reauthorizations of the Federal law governing SNAP.” 84 Fed. Reg. at 66,783. To achieve the
balance envisioned for the statute, Congress contemporaneously authorized states to assume a
key role in identifying where and when the needs of their residents are greatest. Congress
appreciated that states are uniquely positioned to understand the nuances of local labor markets
and assess the realities for residents in their communities. Indeed, the Reconciliation Act was
premised on the understanding that the “best welfare solutions come from those closest to the
problems—not from bureaucrats in Washington.” H. Rept. No. 104-725, at 262 (1996) (Conf.

21

See Reconciliation Act; Farm Security and Rural Investment Act of 2002, Pub. L. No.
107-171, 116 Stat. 134 (2002); Food, Conservation, and Energy Act of 2008, Pub. L. No. 110246, 122 Stat. 1651 (2008); Agricultural Act of 2014, Pub. L. No. 113-79, 128 Stat. 649 (2014);
Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490 (2018).
12

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Rept.). Accordingly, Congress designed Section 2015(o) to combine the able-bodied adult time
limit with a package of waivers and exemptions for states to leverage when local economic
conditions warrant critical food assistance. As explained below, the Rule’s new requirements
destroy these carve outs and the discretion they provide to states. Amalgamated Transit Union v.
Skinner, 894 F.2d 1362, 1366 (D.C. Cir. 1990) (rejecting as invalid strict regulations imposed by
federal regulator on state recipients because the statute “provided increased flexibility enabling
state and local officials to devise their own . . . programs to meet their unique, local needs.”).
In the Reconciliation Act, Congress paired the able-bodied adults time limit with
discretionary waivers to enable states to respond to needs driven by local economic conditions.
As then-Congressman John Kasich, co-author of the able-bodied adults time limit, made clear,
“[i]t is only if you are able-bodied, if you are childless, and if you live in an area where you are
getting food stamps and there are jobs available, then [the time limit] applies.” 142 Cong. Rec.
17,782 (1996) (emphasis added). Congress defined the circumstances described by
Congressman Kasich in part through waivers to be administered by the states. Specifically,
waivers are available for “any group of individuals in the State” if the “area” they reside in meets
one of two criteria: (1) the area has an unemployment rate above ten percent, or (2) the area
“does not have a sufficient number of jobs to provide employment for the individuals.” 7 U.S.C.
§ 2015(o)(4)(A). This language provides states with substantial flexibility in determining where
the need is greatest.
The following year, Congress provided states with even more flexibility to determine
when and how to extend SNAP eligibility to their residents. The Balanced Budget Act allowed
states to exempt fifteen percent of the able-bodied adults otherwise subject to the statute’s
restrictions. Pub. L. No. 105-33, § 1001(2), (3), 111 Stat. at 251-52 (adding par. (6) to 7 U.S.C.

13

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§ 2015(o)). Without this exemption, states were prevented from providing benefits to ablebodied adults who needed them, but did not live in waived areas. See 7 U.S.C.
§ 2015(o)(6)(A)(ii). Enhancing states’ flexibility even more, Congress also allowed states to
accrue unused exemptions and carry them over from one year to the next. See id.
§ 2015(o)(6)(G). Such flexibility has allowed states to prepare for and respond to times of
economic downturn or disruptions in local labor markets as they see fit.
Despite this history, USDA’s avowed purpose in promulgating the Rule is to curtail the
ability of states to make determinations based on local conditions; to that end, the Department
mischaracterizes the flexibility written into the law as “weaknesses” that states “have taken
advantage of.” See 84 Fed. Reg. at 66,783; see also id. at 66,794 (“[T]he Department’s
operational experience has shown that current regulations provide States with too much
flexibility.”). The Rule’s provisions achieve this end, eliminating much of the discretion
Congress and USDA had carefully maintained for the states over the last two decades.
First, the Rule establishes strict geographic boundaries that contravene the discretion
Congress reserved for the states to determine where nutrition assistance is needed. Under current
law, states can apply for a waiver for “any group of individuals.” Congress did not place
geographic limits on the groups eligible, and, under prior regulations, USDA allowed states to
“define areas to be covered by waivers” and “encourage[d] State agencies to submit data and
analyses that correspond to the defined area.” 7 C.F.R. § 273.24(f)(6).
Under the Rule, however, an area does not qualify for a waiver unless it is “considered a
Labor Market Area.” 84 Fed. Reg. at 66,793-98 (to be codified at 7 C.F.R. § 273.24(f)(4)). As a
result, substate areas now may not be grouped, despite a state’s understanding of a region’s
integrated labor markets or economic ties. Id. at 66,793-95 (restricting the grouping of substate

14

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areas); 66,796-97 (restricting the definition of waiver area); 66,797 (restricting statewide
waivers). USDA acknowledged that the purpose of this change is to constrain state discretion:
“[T]his flexibility allow[ed] States to strategically group substate areas to maximize the
geographic coverage of waived areas . . . . [T]he need to address this problem outweighs the
arguments received in support of States’ need to maintain current flexibility.” Id. at 66,794.
Defining the states’ flexibility as a “problem” that the Rule needed to fix conflicts with the
statute and its purpose, structure, and history described above.
In fact, this restrictive definition of “area” was previously considered and rejected by
Congress. USDA claims that “Congress has been silent on the specific issue of combining data
to group substate areas.” Id. In 2018, however, Congress explicitly considered “grouped” areas
or “grouping”—terms that, as USDA itself explains, refer to “combining unemployment data
from individual substate areas to calculate an unemployment rate for the combined area.” Id. at
66,793. Specifically, through a proposed subparagraph titled “Limit on combining
jurisdictions,” the House version of the 2018 Farm Bill would have proscribed the grouping of
substate areas unless formerly designated as Labor Market Areas. H.R. 2, 115th Cong. § 4015
(2018). This change was rejected. H. Rept. No. 115-1072, at 615 (2018) (Conf. Rept.). In
preserving the status quo, Congress stated that it “intend[ed] to maintain the practice that
bestows authority on the State agency responsible for administering SNAP to determine when
and how waiver requests for able-bodied adults are submitted.” Id. at 616.
The Rule’s geographic restriction is based on an implausible—and incorrect—
understanding of the discretion Congress has historically provided to the states. In interpreting
the 2018 Conference Report’s statement that Congress “intend[ed] to maintain the practice that
bestows authority on the State agency responsible for administering SNAP to determine when

15

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and how waiver requests for able-bodied adults are submitted,” USDA states in the Rule that
“the Conference Report . . . is referring broadly to maintaining the States’ ability to choose
which areas it wishes to request when submitting a request to the Department, not referring to
maintaining the discretion of States to combine data from substate areas to form an economic
region.” 84 Fed. Reg. at 66,794. Later, in response to a comment related to state flexibility, the
Department notes that “States still maintain the ability to choose which areas to request.” Id. at
66,795. This USDA discussion fundamentally misconstrues the nature of the discretion
Congress reserved for the states.
As described above, Congress provided states with flexibility—and the responsibility—to
manage SNAP benefits to meet the particular needs of their residents, including by defining the
geographic area in which residents would be eligible for relief. Nothing in the text of the statute
or the legislative history implies, let alone provides, that the only discretion afforded the states is
the mere decision of whether to in fact request a waiver. Congress’s consideration and ultimate
rejection of a provision that would have restricted waivers to Labor Market Areas is evidence to
the contrary.
Second, the Rule rewrites the waiver criteria established by Congress. Since 1996, when
Section 2105(o) was first added, waiver was appropriate for any area that: (1) “has an
unemployment rate of over 10 percent” or (2) “does not have a sufficient number of jobs to
provide employment for the individuals.” 7 U.S.C. § 2015(o)(4)(A). Historically, USDA has
understood the flexibility provided through the combination of these two criteria.22 But now,

22

See 7 C.F.R. § 273.24(f)(2) (providing “[a] non-exhaustive list of the kinds of data” a
state could submit to support a request); see also 1996 USDA Guidance at 3 (explaining that list
of examples of data that could be used to show lack of sufficient jobs is not exhaustive
“[b]ecause there are no standard data or methods to make the determination of the sufficiency of
jobs”).
16

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under the Rule, if the area does not demonstrate that the unemployment rate is above ten percent
and thus the first criterion is not satisfied, an area must have “a 24-month average unemployment
rate 20 percent or more above the national rate for a recent 24-month period, but in no case may
the 24-month average unemployment rate of the requested area be less than 6 percent.” 84 Fed.
Reg. at 66,811 (to be codified at 7 C.F.R § 273.24(f)(2)(ii)). As a result, states are no longer free
to consider local employment conditions and needs beyond the general employment rate, and the
second criterion set forth by Congress is effectively erased.23
Importantly, Congress considered nearly identical restrictions in 2018. In fact, the House
bill proposed limiting requests for waivers to areas with a 24-month average unemployment rate
20 percent higher than the national average—with a seven percent floor. H.R. 2, 115th Cong.
§ 4015. In the end, the Conference Committee rejected such a change. The Rule, by imposing
even more stringent criteria,24 improperly contracts the scope of SNAP benefits as Congress
defined it.25

23

Other data will suffice only “if the request demonstrates an exceptional circumstance in
an area” that has “caused a lack of sufficient jobs,” or if “standard BLS data or data from a BLScooperating agency is limited or unavailable.” 84 Fed. Reg. at 66,811 (to be codified at 7 C.F.R.
§ 273.24(f)(3), (6)).
24

H.R. 2 proposed a seven percent floor, H.R. 2, 115th Cong. § 4015, whereas the Rule
imposes a six percent floor, 84 Fed. Reg. at 66,811 (to be codified at 7 C.F.R. § 273.24(f)(2)(ii)).
H.R. 2 also would have provided for a waiver if an area “is in a State . . . that is in an extended
benefit period (within the meaning of section 203 of the Federal-State Extended Unemployment
Compensation Act of 1970); or . . . in which temporary or emergency unemployment
compensation is being provided under any Federal law.” H.R. 2, 115th Cong. § 4015.
25

See U.S. Gen. Accounting Office, GAO/RCED-00-5, Food Stamp Program: How
States Are Using Federal Waivers of the Work Requirement, Report to the Chairman, Committee
on the Budget, House of Representatives 4 (1999), https://www.gao.gov/archive/2000/
rc00005.pdf (“[T]he law provides for waivers based on an insufficient number of jobs because
the Congress recognized that ‘the unemployment rate alone is an imperfect measure of the
employment prospects of individuals with little work history and diminished opportunities.’”).
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Third, the Rule limits exemption carry-overs contrary to the exemption program
established by Congress, which explicitly provides for such accrual. 7 U.S.C. § 2015(o)(6)(G)
(“During fiscal year 1999 and each subsequent fiscal year, the Secretary shall increase or
decrease the number of individuals who may be granted an exemption by a State agency under
this paragraph to the extent that the average monthly number of exemptions in effect in the State
for the preceding fiscal year under this paragraph is lesser or greater than the average monthly
number of exemptions estimated for the State agency for such preceding fiscal year under this
paragraph.”). As a result, states no longer can store exemptions for when they are needed the
most. 84 Fed. Reg. at 66,803 (to be codified at 7 C.F.R. § 273.24(h)(2)(i)).
USDA lamented that “[s]tates have accumulated extremely high amounts of unused
discretionary exemptions that well exceed the number allotted to each State for the fiscal year.”
Id. at 66,783. Yet, this flexibility is precisely the point of Section 2015(o)(6). In fact, in 2018,
Congress explicitly retained states’ ability to accrue exemptions, noting this practice to be
“consistent with current law.” H. Rept. No. 115-1072, at 616. As Congress explained: “These
exemptions are meant to excuse individuals who need short-term reprieve from requirements or
for those specific populations the State determines should be excluded.” Id. The reason for
retaining this discretion was clear: “[N]either the Department nor Congress can enumerate every
[able-bodied adult’s] situation as it relates to possible exemption from the time limit, and
subsequently, the work requirement.” Id.
Finally, in 2018, Congress not only determined that each of the Rule’s restrictions
described above would unduly limit the states’ discretion, it also understood that the stringent
limitations proposed in H.R. 2 were contrary to the law enacted in 1996. Specifically, to impose
the new restrictions, H.R. 2 would have struck Section 2015(o) entirely. The Rule’s

18

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requirements—which mirror the rejected H.R. 2 proposals—similarly breach the provisions of
Section 2015(o) that Congress so recently decided to retain. The Rule is thus contrary to law.
C.

In 2018, A Bipartisan Congress Rejected Attempts to Include More Stringent
Work Requirements in SNAP, Effectively Ratifying the Way USDA Had
Long Been Administering the Program

With the 2018 Farm Bill, Congress adopted the agency’s longstanding approach to
administering SNAP. In the wake of the 1996 changes to the Food Stamp Program, USDA
interpreted the law to require that states be given substantial discretion to request waivers of the
work requirements, and USDA has worked in partnership with states in achieving the purpose of
the program, providing “guidance to support state agencies in operating SNAP.”26 By expressly
rejecting proposals to restrict state discretion respecting waivers, Congress 2018 affirmed the
Department’s interpretation.
As the 1996 USDA Guidance to states seeking waivers to limits on food stamps explains,
“[USDA] will allow States broad discretion to decide if a waiver request is appropriate for a
particular locale or situation.” 1996 USDA Guidance at 1; see also id. (“USDA will give States
broad discretion in defining areas that best reflect the labor market prospects of program
participants and State administrative needs.”). In 2016 guidance, USDA stated that the law
“provides that States may request to waive the time limit for individuals in all or part of the State
if the requested area demonstrates high unemployment or a lack of sufficient jobs.”27 It further
explained that, to assist the states, the Department has provided policy memoranda for years in

26

Food and Nutrition Service, Supplemental Nutrition Assistance Program (SNAP):
Program Administration, USDA (Apr. 17, 2019), https://www.fns.usda.gov/snap/admin.
27

USDA, Supplemental Nutrition Assistance Program - Guide to Supporting Requests to
Waive the Time Limit for Able-Bodied Adults without Dependents (ABAWD) (Dec. 2, 2016),
https://fns-prod.azureedge.net/sites/default/files/snap/SNAP-Guide-to-Supporting-Requests-toWaive-the-Time-Limit-for-ABAWDs.pdf.
19

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addition to the federal regulations given the complexity of the information used to support
requests for waiver of the time limits. See id.
The Rule will now upend this whole process, despite the fact that, in enacting the 2018
Farm Bill, Congress effectively ratified USDA’s administration of SNAP in coordination with
the states. See NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974)
(“[C]ongressional failure to revise or repeal the agency’s interpretation is persuasive evidence
that the interpretation is the one intended by Congress.”). It is impermissible for the Rule to
change USDA’s approach to administering SNAP when Congress has just ratified that very
approach.28
USDA’s attempt to circumvent the 2018 Farm Bill and the flexibility and discretion it
retained for the states is not permissible and should be rejected. The Rule rewrites a core
component of SNAP’s structure, specifically the ability of states to obtain waivers and tailor the
program to meet their local needs. That is not a decision Congress authorized USDA to make.
To the contrary, as explained above, Congress expressly considered and rejected proposals
similar to those that USDA now seeks to emplace. “Congress alone has the institutional
competence, democratic legitimacy, and (most importantly) constitutional authority to revise
statutes in light of new social problems and preferences.” Wis. Cent. Ltd. v. United States, 138

28

The part of the Food and Nutrition Service website that includes this 2016 guidance
regarding requests for waivers highlights the approaching shift: “As a result of the final rule,
Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without
Dependents, that was published on December 5, 2019, the regulatory standards referenced in this
guide are only valid through March 31, 2020. In order to have a waiver as of April 1, 2020, and
thereafter, states must request a waiver that meets the new standards in 7 CFR 273.24(f) and
should submit that request as soon as possible to their respective FNS regional office contact(s).
FNS expects to replace this guide in the future.” See USDA Food and Nutrition Service, SNAP
Guide to Supporting Requests to Waive the Time Limit for ABAWDs (Dec. 30, 2019),
https://www.fns.usda.gov/snap/ABAWD/guide-to-support-time-limit-waive-requests.
20

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S. Ct. 2067, 2074 (2018). Simply put, the Executive Branch cannot accomplish by regulation
what the Legislative Branch has rejected by legislation.
By imposing new geographic restrictions on waiver requests, rewriting the waiver
criteria, and severely restricting the carry-over of critical exemptions, see supra Section I.B., the
Rule impermissibly conflicts with the statute governing SNAP. See Oceana, Inc. v. Locke, 670
F.3d 1238, 1243 (D.C. Cir. 2011) (“When a statute commands an agency without qualification to
carry out a particular program in a particular way, the agency’s duty is clear; if it believes the
statute untoward in some respect, then ‘it should take its concerns to Congress,’ for ‘[i]n the
meantime it must obey [the statute] as written.’” (alterations in original) (citation omitted)); see
also Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 328 (2014) (“reaffirm[ing] the core
administrative-law principle that an agency may not rewrite clear statutory terms to suit its own
sense of how the statute should operate”).
Indeed, as the Speaker of the House recently observed, the Rule is in “direct opposition to
the bipartisan, bicameral will of the Congress, which has repeatedly rejected similar attacks on
working Americans and instead passed a strong Farm Bill that bolsters rural communities and
critical nutrition initiatives.”29 Adopted contrary to law, the Rule should be rejected.
II.

IN DIVERGING FROM SNAP’S PURPOSE, STRUCTURE, AND
ADMINISTRATION, THE RULE WILL CAUSE IRREPARABLE HARM
The changes effected by the Rule—changes rejected by Congress’s bipartisan passage of

the 2018 Farm Bill—will cause irreparable harm.
The cuts in benefits to an estimated 688,000 recipients will spur hunger, compounding
food insecurity, dangers to public health, and risks to many families. The changes target people

29

Press Release, Pelosi Statement on Trump Administration Rule to Slash SNAP
Benefits (Dec. 4, 2019), https://www.speaker.gov/newsroom/12419-0.
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and households already beset by poverty, denying SNAP benefits to the most vulnerable. Those
adversely affected encompass the homeless and other at-risk populations, including those with
transportation, housing, or substance abuse problems. For some, SNAP is the only benefit
available, but with much-needed flexibility now removed from the program, states no longer can
effectively assist them. With the changes imposed by the Rule, nutrition assistance will be
automatically denied for those adults failing to meet the work requirements, regardless of their
efforts to find employment or challenges beyond their control preventing them from finding
work opportunities. Plainly put, unless a preliminary injunction is issued to block
implementation of the Rule, hundreds of thousands of Americans may be deprived of food.
In reviewing the actual circumstances of able-bodied adults participating in SNAP, the
reality is that the large majority in fact are in the labor force.30 But, for these individuals, steady
employment remains an elusive objective.31 The Rule’s changes ignore that in many regions of
the country, under-employment is a very real hurdle—with the prospect of finding full-time,
permanent employment a continual, daunting challenge.
Indeed, one study found that up to one-third of able-bodied SNAP participants struggled
with at least one impediment significant enough to affect their ability to work, including mental
disabilities, physical injuries, learning disabilities, depression, or post-traumatic stress disorder,
but not so severe as to qualify these individuals for federal disability benefits.32 The Rule strikes

30

Examining the Proposed ABAWD Rule and Its Impact on Hunger and Hardship:
Hearing Before the Subcomm. on Nutrition, Oversight, and Dep’t Operations of the H. Comm.
on Agric., 116th Cong. 55-108 (2019) (statement of Dr. Jay C. Shambaugh, Director, The
Hamilton Project).
31

Id.

32

Ohio Association of Foodbanks, Franklin County Ohio Work Experience Program,
Comprehensive Report: Able-Bodied Adults Without Dependents (2014-2015),
http://ohiofoodbanks.org/wep/WEP-2013-2015-report.pdf.
22

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necessary allowances for these individuals, instead promoting the loss of food, and fails to
account for the damage that deprivation will wreak on these vulnerable households.
Food insecurity is at the forefront of perils for able-bodied adults, whom the Rule now
seeks to exclude from SNAP benefits. Research has demonstrated that this exposure stretches
across an individual’s lifespan, increasing risk to nutritional deficiencies and general poor
health.33 Households participating in SNAP, however, are better positioned to manage their
lives, being spared the choice between purchasing food or tending to other critical needs,
including medical care.34 Conversely, the greater the food insecurity, the greater the adverse
effects on chronic disease and health care costs.35
Food insecure individuals have been found to require more than twice the costs in
medical care than those with food security.36 For example, one study of hunger and health found
that hospital admissions for hypoglycemia in the last week of the month spike in comparison to
the first week, reflecting the lack of end-of-month funds for low-income households. 37 And
when comparing low-income households with and without SNAP support, low-income adults

33

Past, Present, and Future of SNAP: Breaking the Cycle: Hearing Before the Subcomm.
on Nutrition of the H. Comm. on Agric., pt. 3, 114 Cong. 411-16 (2015) (statement of
Dr. Eduardo Ochoa, Jr., M.D., F.A.A.P., Children’s Healthwatch).
34

Id.

35

Past, Present, and Future of SNAP: Addressing Special Populations: Hearing Before
the Subcomm. on Nutrition of the H. Comm. on Agric., pt. 4, 114 Cong. 568-74 (2016) (statement
of Eric J. Schneidewind, J.D., AARP).
36

Id.

37

Id.

23

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participating in SNAP were found to require nearly 25 percent less in annual medical care costs
than low-income non-participants.38
Moreover, in imposing the new SNAP restrictions, the Rule aggravates the adverse
impact on health and nutrition for able-bodied adults by imperiling the capacity for families and
communities around the country to thrive. Those living in rural communities, often with limited
access to alternative food sources and permanent, full-time employment opportunities, will be
among those most gravely affected.
And, for those most vulnerable, other non-government services are themselves
increasingly compromised in their efforts to fill the ever-widening gap between at-risk ablebodied adults and available resources. Plaintiff Bread for the City, for example, will be forced
by the Rule to divert resources from other critical priorities, including programs dedicated to
other urgent matters such as housing, medical, and legal concerns, in order to account for the
imminent harm from the Rule. See Mot. for Prelim. Inj. at 40-41, Bread for the City et al. v.
USDA et al., No. 20-cv-00127-BAH (D.D.C. filed Jan. 16, 2020), consolidated with District of
Columbia et al. v. USDA et al., No. 20-cv-00119-BAH. Emergency networks and charity
support for vulnerable households are stretched thin, increasingly unable to contend with rising
levels of hunger and need in their communities.39

38

Program Integrity for the Supplemental Nutrition Assistance Program: Joint Hearing
Before the Subcomm. On Healthcare, Benefits, and Administrative Rules, and the Subcomm. on
Intergovernmental Affairs of the Comm. on Oversight and Government Reform, 115 Cong. 68-92
(2018) (statement of Stacy Dean, Vice President for Food Assistance Policy, Center on Budget
and Policy Priorities). The study found the difference in annual costs between low-income
SNAP participants and non-participants to be even greater with regard to hypertension and
coronary heart disease. Id.
39

See Margarette Purvis, Food Bank for New York City, The SNAP Rule Will Cause More
Hunger Than We Can Handle, N.Y. Times (Dec. 12, 2019), https://www.nytimes.com/2019/
12/12/opinion/trump-snap-food-stamps.html.
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This Court has recognized that this loss of food or other necessities—an inevitable result
of the Administration’s new Rule—causes irreparable harm. See Garnett v. Zeilinger, 313
F. Supp. 3d 147, 157-58 (D.D.C. 2018); Int’l Long Term Care, Inc. v. Shalala, 947 F. Supp. 15,
19 (D.D.C. 1996) (finding termination of Medicare participation to be irreparable harm). Such
harms may take the form of able-bodied adults being forced to choose between obtaining food or
paying for other necessary expenses like rent or utility bills, perversely skipping meals to
survive. Garnett, 313 F. Supp. 3d at 157-58. Other courts agree that the denial of public
benefits, as contemplated by the Rule, constitutes irreparable harm.40
Given that “the denial of a preliminary injunction may deprive many low-income
households of their sole source of food,” this Court should conclude that “the irreparable harm
requirement is easily satisfied here.” Booth v. McManaman, 830 F. Supp. 2d 1037, 1044
(D. Haw. 2011).
CONCLUSION
For the reasons stated above, the House submits this brief in support of Plaintiffs.
Respectfully submitted,
/s/ Douglas N. Letter
Douglas N. Letter (DC Bar No. 253492)
General Counsel
Todd B. Tatelman (VA Bar No. 66008)
40

See, e.g., Kildare v. Saenz, 325 F.3d 1078, 1083 (9th Cir. 2003) (holding that economic
hardship is irreparable harm because back payments cannot “erase either the experience or the
entire effect of several months without food, shelter or other necessities” (citation omitted));
Johnson v. Shalala, 2 F.3d 918, 922 (9th Cir. 1993) (holding that reduced social security benefits
while awaiting administrative review is irreparable injury); Paxton v. Sec’y of Health & Human
Servs., 856 F.2d 1352, 1354 (9th Cir. 1988) (noting that for those at subsistence level, any
benefit reduction can impact survival). Likewise, here, the withdrawal of SNAP benefits is a
recipe for “lingering, if not irreversible, hardships upon recipients.” Haskins v. Stanton, 794
F.2d 1273, 1276-77 (7th Cir. 1986) (citation omitted) (affirming preliminary injunction brought
by food stamp applicants against administrators of food stamp program).
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Principal Deputy General Counsel
Adam A. Grogg (DC Bar No. 1552438)
Associate General Counsel
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, DC 20515
Telephone: (202) 225-9700
douglas.letter@mail.house.gov
Jonathan L. Marcus (DC Bar No. 451172)
Paul M. Kerlin (DC Bar No. 993243)
Marisa B. Van Saanen (DC Bar No. 1021818)
Kathleen Shelton (DC Bar No. 1619066)
1440 New York Avenue NW
Washington, D.C. 20005
(202) 371-7000
jonathan.marcus@probonolaw.com
paul.kerlin@probonolaw.com
marisa.vansaanen@probonolaw.com
kathleen.shelton@probonolaw.com
Counsel for Amicus U.S. House of Representatives
January 27, 2020

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