Gov. Laura Kelly on Tuesday joined with 22 attorneys general and two governors to force the U.S. Department of Agriculture to provide food-assistance benefits during the government shutdown.
The lawsuit accuses the USDA of unlawfully suspending federal food-assistance benefits for more than 40 million Americans during the ongoing federal government shutdown.
Last week, the USDA told the states that it would not use roughly $6 billion in available contingency funds to pay for November benefits through the Supplemental Nutrition Assistance Program, also known as SNAP.
The letter directed states to postpone processing November food-assistance benefits until further notice.
The USDA said November food-assistance benefits would be delayed or interrupted entirely until a budget agreement or continuing resolution is reached or the federal government identifies funding for the program.
The states argue in their lawsuit – filed in Massachusetts – that suspending food-assistance benefits violates federal law and is “arbitrary and capricious” under the Administrative Procedure Act.
“USDA suspended SNAP benefits even though, on information and belief, it has funds available to it that are sufficient to fund all, or at least a substantial portion, of November SNAP benefits,” the lawsuit said.
The states say that suspending benefits under SNAP is irreparably harming them. They say the harm increases every day that the benefits are delayed.
They say the federal government is required to continue providing food-assistance benefits during the shutdown as long as funding is available.
The lawsuit – led by attorneys general from Massachusetts, Arizona, California and Minnesota – urges the court to force the USDA to use contingency funds appropriated by Congress to keep the program going during the shutdown.
“Cutting off SNAP payments is an unprecedented choice made by the Trump Administration and Congress that will harm millions of families across the country,” Kelly said.
“I joined this lawsuit to protect Kansans, because the federal government has a legal and moral responsibility to fund this program, not to take food out of the mouths of Kansas children,” Kelly said in a statement.
About 188,000 children, families and seniors in Kansas receive food-assistance benefits totaling $34 million each month.
The Kansas attorney general said late Tuesday that the governor had no legal authority to join the lawsuit.
Last week, USDA issued guidance saying that contingency funds were not legally available to bankroll regular food-assistance benefits.
The agency said food-assistance contingency funds are only available to supplement regular monthly benefits when funds have been appropriated but aren’t enough to cover benefits.
The USDA said the contingency fund is a source of money during emergencies such as natural disasters, including hurricanes, tornadoes and floods.
It also said that drawing money away from other sources would hurt programs for school meals and infant formula.
“This administration will not allow Democrats to jeopardize funding for school meals and infant formula in order to prolong their shutdown,,” the USDA said.
In August, Republican Attorney General Kris Kobach questioned whether Kelly had authority under state law to join a lawsuit.
Kobach filed a motion in a separate case trying to block Kelly from participating in a lawsuit against the Trump administration over what she described as unprecedented and unlawful attempts to cut funding to state government.
Kobach filed a friend-of-the court brief in that case, arguing that Kelly did not have the authority to bring the lawsuit on behalf of Kansas along with a coalition of attorneys general from Democratic-led states.
Kobach asked a federal judge to dismiss Kelly’s claims in that case because she did not have the authority under state law to bring the litigation.
He said only the attorney general can represent the state in federal court or any appeals court. And in any court, he said, the attorney general decides the state’s position.
He reasserted that view Tuesday.
“Gov. Kelly seems to think that she has the powers of the attorney general, even though Kansas law makes it quite clear that only the attorney general can sue on behalf of the state of Kansas,” Kobach said in a statement.
“She will be kicked out of the lawsuit. Perhaps she should focus on doing the job that she was elected to do,” he said.
In the new litigation, Kelly brought the lawsuit in her official capacity as governor.
The new food-assistance lawsuit said that the Kansas Constitution vests the “supreme executive power” in the governor, “who shall be responsible for the enforcement of the laws of” Kansas.
“The governor oversees all executive agencies in Kansas and has the power to bring a suit and be sued in her official capacity in fulfilling her constitutional duty,” the lawsuit said.
