Biden Is Setting a Dangerous Precedent

With an executive order on food assistance, he is trying to override the intent of Congress.

President Joe Biden’s recent executive order to expand food assistance to U.S. households, while well-intentioned, represents a substantial overreach of the executive branch and a blatant attempt to override the intent of Congress. 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 subvert the intent of existing law.

Less than one week into the Biden presidency, the new administration issued a series of executive orders focused on COVID-19 economic relief. One such order seeks 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 steps to make it easier for the hardest-hit families to enroll and claim more generous benefits in the critical food and nutrition assistance area.” In reality, the executive order asks a federal agency — the USDA — to intentionally misinterpret the Families First Act and subvert the constitutional authority of Congress over the legislative process.

The Families First Act, which passed in March 2020, clearly outlined that states could request waivers from the Agriculture Department to provide emergency allotments to SNAP households “not greater than the applicable maximum monthly allotment for the household size.” In normal times, 60 percent of households enrolled in SNAP do not receive the maximum benefit because they have income from other sources — such as earnings — that they can use for purchasing food.

The emergency allotments recognized that millions of people lost jobs or faced other employment disruptions when the pandemic hit, and that those enrolled in SNAP were at particular risk for job loss in the early aftermath of the pandemic. Rather than requiring SNAP households to report a job or income change to their state agency and wait for bureaucrats to recalculate their benefits, the emergency allotments gave every SNAP recipient the maximum allowed. This was, admittedly, not a very targeted effort. Some families received a boost in SNAP dollars without a change in household income or financial circumstances. But the immediacy of the economic shock brought on by the pandemic, and the employment instability that persists today, necessitated an equally expedient policy response.

The Agriculture Department, under President Trump, had approved emergency allotment 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 extended these emergency-allotment waivers numerous times, most recently extending them through January 2021. The USDA — and Congress itself — also offered states flexibility in the aftermath of the pandemic. According to federal government spending data, all of the efforts outlined above have caused SNAP benefits to rise more than 40 percent in the last fiscal year, with more than $31 billion in added spending compared to FY 2019.

Class-action suits have been filed in Pennsylvania and California by people who disagree with the USDA’s interpretation of the law: that regular SNAP plus emergency allotments cannot extend benefits beyond the maximum benefit level. Lawyers for the lawsuits argue that the law allows the USDA to approve emergency allotments in the amount of the maximum benefit, which if true, would mean that households could receive the maximum SNAP benefit plus the maximum emergency allotment — essentially doubling benefit amounts. A federal judge in California agreed with the USDA, while the Pennsylvania case is ongoing.

The Biden administration’s executive order is encouraging its USDA to misinterpret the 2020 law in a similar way. The legislative text is not ambiguous. It is hard to imagine Congress being any clearer than, “to address temporary food needs not greater than the applicable maximum monthly allotment for the household size.” If Congress had wanted to give people more than the SNAP maximum, it would have done so. In fact, Congress eventually did just that — expanding benefits by 15 percent in the COVID-19 relief package passed last month.

If the Biden administration is successful in this attempt, it will open the door to a number of executive actions aimed at expanding the safety net without congressional action. If political appointees in the Biden administration feel unconstrained by the law, we will see larger benefits directed to an increasing number of people. Such action not only undermines the integrity of the social safety net by going around Congress, it disregards the separation of powers ensconced in the founding documents of our republic. The American public has been largely supportive of efforts by Congress to provide economic relief to struggling households. Let’s keep that authority in its proper place.