Hostname: page-component-848d4c4894-ndmmz Total loading time: 0 Render date: 2024-05-21T01:16:15.264Z Has data issue: false hasContentIssue false

SNAP EXCLUSIONS AND THE ROLE OF CITIZEN PARTICIPATION IN POLICY-MAKING

Published online by Cambridge University Press:  11 October 2021

Brian Hutler
Affiliation:
Political Philosophy and Philosophy of Law, Berman Institute of Bioethics, Johns Hopkins University, USA
Anne Barnhill
Affiliation:
Political Philosophy and Public Health Ethics, Berman Institute of Bioethics Johns Hopkins University, USA

Abstract

This essay uses a specific example—proposals to exclude sugary drinks from the Supplemental Nutrition Assistance Program (SNAP)—to explore some features of the contemporary U.S. administrative state. Dating back to the Wilsonian origins of the U.S. administrative state there has been uncertainty about whether we can and should separate politics and administration. On the traditional view, the agencies are to be kept separate from politics—technocratic and value-neutral—although they are indirectly accountable to the president and Congress. The SNAP exclusions example shows, however, that agencies often must make complex and controversial decisions on their own, decisions that go beyond value-neutral technocratic administration. When authorizing legislation has multiple goals, as we’ll argue is the case in the SNAP example, an agency will have to choose between conflicting statutory mandates. Moreover, as the SNAP example shows, agencies often face complex normative questions of ethics and justice that go beyond the question of how to balance competing aims. The appropriate response to the SNAP exclusions example is not to keep politics out of administrative decision-making, but to develop procedures that allow ethical and political questions to be addressed in agency policy-making, consistent with overarching commitments to fairness and democracy.

Type
Research Article
Copyright
© 2021 Social Philosophy & Policy Foundation. Printed in the USA

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Berman Institute of Bioethics, Johns Hopkins University, brianhutler@jhu.edu; Berman Institute of Bioethics, Johns Hopkins University, abarnhi1@jhu.edu. We would like to thank the other contributors to this volume for their invaluable comments and discussion of our paper.

References

1 Anne Barnhill, “Impact and Ethics of Excluding Sweetened Beverages From the SNAP Program,” American Journal of Public Health 101, no. 11 (2011): 2037–43; Anne Barnhill and Katherine F. King. “Evaluating Equity Critiques in Food Policy: The Case of Sugar-Sweetened Beverages,” The Journal of Law, Medicine and Ethics 41, no. 1 (2013): 301–309; Anne Barnhill, “Do Sugary Drinks Undermine the Core Purpose of SNAP?” Public Health Ethics 12, no.1 (2019): 82–88.

2 Food and Nutrition Service, United States Department of Agriculture, “Supplemental Nutrition Assistance Program Participation and Costs,” (2019) https://fns-prod.azureedge.net/sites/default/files/pd/SNAPsummary.pdf

3 Food and Nutrition Service, United States Department of Agriculture, “What Can SNAP Buy?” https://www.fns.usda.gov/snap/eligible-food-items

4 Anahad O’Connor, “In the Shopping Cart of a Food Stamp Household: Lots of Soda,” The New York Times, January 13, 2017, sec. Well. https://www.nytimes.com/2017/01/13/well/eat/food-stamp-snap-soda.html.

5 Barnhill, “Impact and Ethics of Excluding Sweetened Beverages”; J. Lynch and E. Bassler, “SNAP Decisions Health Impact Assessment: Proposed Illinois Legislation to Eliminate Sugar-Sweetened Beverages from the Supplemental Nutrition Assistance Program (SNAP)” (Chicago: Illinois Public Health Institute, 2014), 17–18. See also: David S Ludwig, Susan J. Blumenthal, and Walter C. Willett, “Opportunities to Reduce Childhood Hunger and Obesity: Restructuring the Supplemental Nutrition Assistance Program (the Food Stamp Program) Restructuring the SNAP Program.” Journal of the American Medical Association 308, no. 24 (2012): 2567–68. http://jama.jamanetwork.com/article.aspx?articleid=1487507&sf8186873=1.

Kelly D. Brownell and David S. Ludwig. “The Supplemental Nutrition Assistance Program, Soda, and USDA Policy: Who Benefits?” Journal of the American Medical Association 306, no. 12 (2011): 1370–71. http://archotol.jamanetwork.com/article.aspx?articleid=1104422;

Andrew Fisher, Big Hunger: The Unholy Alliance between Corporate America and Anti-Hunger Groups (Cambridge, MA: MIT Press, 2017), 105–41; Marlene B. Schwartz, “Moving Beyond the Debate Over Restricting Sugary Drinks in the Supplemental Nutrition Assistance Program,” American Journal of Preventive Medicine 52, no. 2 (2017): S199–205; Jennifer L. Pomeranz and Jamie F. Chriqui, “The Supplemental Nutrition Assistance Program: Analysis of Program Administration and Food Law Definitions,” American Journal of Preventive Medicine 49, no. 3 (2015): 428–36; Robert Paarlberg, Dariush Mozaffarian, Renata Micha, and Carolyn Chelius, “Keeping Soda in SNAP: Understanding the Other Iron Triangle,” Society 55, no. 4 (2018): 308–17.

6 Barnhill, “Impact and Ethics of Excluding Sweetened Beverages From the SNAP Program”; Lynch and Bassler, “SNAP Decisions Health Impact Assessment”; Nicole M. V. Ross and Douglas P. MacKay, “Ending SNAP-Subsidized Purchases of Sugar-Sweetened Beverages: The Need for a Pilot Project,” Public Health Ethics 10, no. 1 (2017): 62–77.

7 Barnhill, “Impact and Ethics of Excluding Sweetened Beverages From the SNAP Program”; Lynch and Bassler, “SNAP Decisions Health Impact Assessment.”

8 O’Connor, “In the Shopping Cart of a Food Stamp Household: Lots of Soda.”

9 Michael W. Long, Cindy W Leung, Lilian WY Cheung, Susan J Blumenthal, and Walter C Willett, “Public Support for Policies to Improve the Nutritional Impact of the Supplemental Nutrition Assistance Program (SNAP),” Public Health Nutrition 17, no. 1 (2014): 219–24.

10 Pomeranz and Chriqui, “The Supplemental Nutrition Assistance Program: Analysis of Program Administration and Food Law Definitions”; Paarlberg et al., “Keeping Soda in SNAP.”

11 Paarlberg et al., “Keeping Soda in SNAP.”

12 J. Shahin, Associate Administrator, Supplemental Nutrition Assistance Program, USDA, Letter to Elizabeth Berlin, Executive Deputy Commissioner, New York State Office of Temporary and Disability Assistance, August 19, 2011, http://www.foodpolitics.com/wp-content/uploads/SNAP-Waiver-Request-Decision.pdf.

13 Shahin, Letter to Elizabeth Berlin; USDA Food and Nutrition Service, “Implications of Restricting the Use of Food Stamp Benefits,” https://fns-prod.azureedge.net/sites/default/files/FSPFoodRestrictions.pdf; Paarlberg et al., “Keeping Soda in SNAP”; Barnhill, Anne and King, Katherine F.. “Ethical Agreement and Disagreement about Obesity Prevention Policy in the United States,” International Journal of Health Policy and Management 1, no. 2 (2013): 117.CrossRefGoogle ScholarPubMed

14 USDA, “Implications of Restricting the Use of Food Stamp Benefits.”

15 The thought here, presumably, is that SNAP participants will try to purchase newly excluded foods with their SNAP debit card, will be told at the checkout that they can’t purchase those foods using SNAP, and will thereby be be outed as SNAP participants, causing embarrassment.

16 USDA, “Implications of Restricting the Use of Food Stamp Benefits.”

17 Barnhill, “Impact and Ethics of Excluding Sweetened Beverages From the SNAP Program”; Pomeranz and Chriqui, ““The Supplemental Nutrition Assistance Program: Analysis of Program Administration and Food Law Definitions.”

18 Brownell and Ludwig, “The Supplemental Nutrition Assistance Program, Soda, and USDA Policy.”

19 Pomeranz and Chriqui, ““The Supplemental Nutrition Assistance Program: Analysis of Program Administration and Food Law Definitions,” 430.

20 Letter from Mayors to John Boehner and Nancy Pelosi, June 18, 2013, http://www.nyc.gov/html/om/pdf/2013/snap_letter_to_house_6_18_13.pdf.

21 Paarlberg et al., “Keeping Soda in SNAP.”

22 Ibid., 311.

23 Ibid.

24 Fisher, “SNAP’s Identity Crisis”; Schwartz “Moving Beyond the Debate”; Paarlberg et al., “Keeping Soda in SNAP.”

25 Food Research and Action Center, “A Review of Strategies To Bolster SNAP’s Role in Improving Nutrition as Well as Food Security,” February 2017, https://frac.org/wp-content/uploads/SNAPstrategies.pdf.

26 Joel Berg, “Food Stamps Soda Ban: The Wrong Way to Fight Obesity,” Huffington Post, December 6, 2010, http://www.huffingtonpost.com/joel-berg/food-stamps-soda-ban-the-_b_791863.html.

27 “Wait a New York minute!” Editorial, Los Angeles Times, October 15, 2010, http://articles.latimes.com/2010/oct/15/opinion/la-ed-soda-20101015.

28 For more discussion, see Barnhill and King, “Evaluating Equity Critiques” and Schwartz “Moving Beyond the Debate.”

29 Ibid.; Paarlberg et al., “Keeping Soda in SNAP.”

30 FRAC, “A review of strategies to bolster SNAP.”

31 Emily Badger, “What Kansas gets wrong when it tries to control what poor people can do with welfare,” The Washington Post, April 17, 2015, http://www.washingtonpost.com/news/wonk/wp/2015/04/17/the-double-standard-of-making-the-poor-prove-theyre-worthy-of-government-benefits/.

32 Schwartz, “Moving Beyond the Debate,” 203.

33 Barnhill and King, “Evaluating Equity Critiques”; See also the quotes expressing the value of consuming sugary drinks in Paarlberg et al. “Keeping Soda in SNAP,” 312.

34 See, for example: Dan E. Beauchamp, “Public Health as Social Justice,” Inquiry: A Journal of Medical Care Organization, Provision and Financing 13, no. 1 (1976): 3–14; Ruth Faden and Sirine Shebaya, “Public Health Ethics,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Summer 2010, http://plato.stanford.edu/archives/sum2010/entries/publichealth-ethics/.

35 Fisher, “SNAP’s Identity Crisis”; Barnhill and King, “Ethical Agreement and Disagreement about Obesity Prevention Policy in the United States,” International Journal of Health Policy and Management 1, no. 2 (2013): 117. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3937920/.

36 Schwartz, “Moving Beyond the Debate”; Fisher, “SNAP’s Identity Crisis.”

37 Schwartz, “Moving Beyond the Debate.”

38 Fisher, “SNAP’s Identity Crisis”; Nestle, Marion, Soda Politics: Taking on Big Soda (And Winning) (New York: Oxford University Press, 2015), 220–21.Google Scholar

39 Nestle, Soda Politics, 224; Paarlberg et al., “Keeping Soda in SNAP.”

40 Fisher, “SNAP’s Identity Crisis”; Barnhill, “Do Sugary Drinks Undermine the Core Purpose of SNAP?” Public Health Ethics, February 15, 2018. https://doi.org/10.1093/phe/phy002.

41 Food Research and Action Center, “Supplemental Nutrition Assistance Program (SNAP),” https://frac.org/programs/supplemental-nutrition-assistance-program-snap.

42 Fisher, Big Hunger, 110, 125.

43 Ibid., 113.

44 7 U.S.C. § 2011.

45 Ibid.

46 U.S. Department of Agriculture. Food and Nutrition Service, “Implications of restricting the use of Food Stamp Benefits,” March 1, 2007, https://www.fns.usda.gov/implication-restricting-use-food-stamp-benefits.

47 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

48 Food and Nutrition Service, United States Department of Agriculture, “Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program,” April 2012, https://fns-prod.azureedge.net/sites/default/files/BuildingHealthyAmerica.pdf.

49 Ibid., 2.

50 Ibid., 3.

51 113th Cong., 77 Cong. Rec. S3909-3912 (2013); 430. Pomeranz, Jennifer L., and Chriqui, Jamie F., “The Supplemental Nutrition Assistance Program: Analysis of Program Administration and Food Law Definitions,” American Journal of Preventive Medicine 49, no. 3 (2015): 428–36.CrossRefGoogle ScholarPubMed

52 Paarlberg et al., “Keeping Soda in SNAP,” 311.

53 Ibid‥

54 Ibid., 312

55 Nestle, Soda Politics: Taking on Big Soda; Paarlberg et al., “Keeping Soda in SNAP.”

56 Schwartz, “Moving Beyond the Debate; Paarlberg et al., “Keeping Soda in SNAP.”

57 Barkow, Rachel E., “Insulating Agencies: Avoiding Capture through Institutional Design,” Texas Law Review 89, no. 1 (2010): 1580.Google Scholar

58 Fisher, Big Hunger, pp. 105–107.

59 Mark Tushnet, Mark A. Graber, Sanford Levinson, and Adrian Vermeule, “The Administrative State: Law, Democracy, and Knowledge,” in The Oxford Handbook of the U.S. Constitution, Mark Tushnet, Mark A. Graber, and Sanford Levinson, eds., (New York: Oxford University Press, 2015), https://doi.org/10.1093/oxfordhb/9780190245757.013.13.

60 See, for example, Joshua Cohen, “Deliberation and Democratic Legitimacy,” in James Bohman and William Rehg, eds., Deliberative Democracy: Essays on Reason and Politics (Cambridge, MA: MIT Press: 1997), 67; Estlund, David, Democratic Authority: A Philosophical Framework (Princeton, NJ: Princeton University Press, 2009).CrossRefGoogle Scholar

61 Cf. Sheingate, Adam, The Rise of the Agricultural Welfare State: Institutions and Interest Group Power in the United States, France, and Japan (Princeton, NJ: Princeton University Press, 2003).Google Scholar

62 This literature is vast, but see for example, Svara, James H., “The Politics-Administration Dichotomy Model as Aberration,” Public Administration Review 58 no. 1 (1998): 5158;CrossRefGoogle Scholar and Overeem, Patrick, “The Value of The Dichotomy: Politics, Administration, and the Political Neutrality of Administrators,” Administrative Theory and Praxis 27, no. 2 (2005): 311–29.CrossRefGoogle Scholar

63 Long, Michael W., Leung, Cindy W, Cheung, Lilian WY, Blumenthal, Susan J, and Willett, Walter C. “Public Support for Policies to Improve the Nutritional Impact of the Supplemental Nutrition Assistance Program (SNAP),” Public Health Nutrition 17, no. 1 (2014): 219–24.CrossRefGoogle Scholar

64 Emily Stachera, Jeremy Petch, and Timothy Caulfield. “Obesity Is Killing Us. So Why Can’t We Do Anything about It?” Healthy Debate, February 25, 2016; Williams, Garrath, “The IDEFICS Intervention: What Can We Learn for Public Policy?Obesity Reviews 16 Supplement, no. 2 (2015): 151–61.CrossRefGoogle Scholar

65 A more traditional research and policy design paradigm is to test interventions for effectiveness in one context and then scale-up interventions that are effective, replicating those interventions in other contexts. However, these new contexts are often relevantly different in ways that researchers don’t recognize, and interventions that were effective in one context often fail to be effective in another. A new approach to policy design is to use “systems approaches” at the community level to understand the community-level systems within which eating occurs and to identify leverage points where interventions might change eating behavior. See Allender, Steven, Brown, Andrew D., Bolton, Kristy A., Fraser, Penny, Lowe, Janette, and Hovmand, Peter, “Translating Systems Thinking into Practice for Community Action on Childhood Obesity,” Obesity Reviews 20 (2019): 179–84.CrossRefGoogle ScholarPubMed

66 The canonical text about citizen participation in the TVA was written by its Chairman, David E. Lilienthal, TVA: Democracy on the March (New York: Harper and Brothers, 1944). For an overview of the history of citizen participation in agency decision-making, see Simonsen, William and Robbins, Mark D., Citizen Participation In Resource Allocation (New York: Routledge, 2018).CrossRefGoogle Scholar

67 For an overview of this program, see Marris, Peter and Rein, Martin, Dilemmas of Social Reform: Poverty and Community Action in the United States, 2nd ed. (New York: Routledge, 1967).Google Scholar

68 See Bowen, Don R. and Masotti, Louis H., “Spokesmen for the Poor: An Analysis of Cleveland’s Poverty Board Candidates,” Urban Affairs Quarterly 4, no. 1 (1968): 98108.CrossRefGoogle Scholar

70 See Murdock, Barbara, Wiessner, Carol, and Sexton, Ken. “Stakeholder Participation in Voluntary Environmental Agreements: Analysis of 10 Project XL Case Studies,” Science, Technology and Human Values 30, no. 2 (2005): 223–50.CrossRefGoogle Scholar

71 Memorandum for the Heads of Executive Departments and Agencies, Transparency and Open Government, 74 Fed. Reg. 4685, 4685 (Jan. 26, 2009).

72 Exec. Order No. 13,563, § 2, 76 Fed. Reg. 3821, 3822 (Jan. 21, 2011).

73 For a somewhat critical account of Community Action Agencies, see Daniel P. Moynihan, Maximum Feasible Misunderstanding; Community Action in the War on Poverty (New York: Free Press, 1969).

74 For a discussion of informal political representation, see Salkin, Wendy, Informal Political Representation: Normative and Conceptual Foundations (Dissertation, Philosophy Department, Harvard University, 2018).Google Scholar

75 See, for example, Jody Freeman, “The Private Role in the Public Governance,” New York University Law Review 75, no. 3 (2000): 543–675 (arguing that “aggregate” accountability produced through the “horizontal negotiation” of public and private actors is an important alternative to the vertical accountability that dominates the traditional understanding of administrative law).

76 Jody Freeman, “Collaborative Governance in the Administrative State,” UCLA Law Review 45, no. 1 (1997): 7.

77 Reeve T. Bull, Attorney Advisor to the Administrative Conference of the United States has helpfully canvased a number of specific proposals. Reeve T. Bull, “Making the Administrative State Safe for Democracy: A Theoretical and Practical Analysis of Citizen Participation in Agency Decisionmaking,” Administrative Law Review 65, no. 3 (2013): 611–64.

78 Arkush, David J., “Direct Republicanism in the Administrative Process,” George Washington Law Review 81, no. 5 (2013): 14581528.Google Scholar

79 Noveck, Beth Simone, “Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer,” Boston University Journal of Science and Technology Law 9, no. 1 (2003): 191.Google Scholar

80 Pildes, Richard H. and Sunstein, Cass R., “Reinventing the Regulatory State,” University of Chicago Law Review 62, no. 1 (1995): 1129.CrossRefGoogle Scholar

81 Fishkin, James S., “The Televised Deliberative Poll: An Experiment in Democracy,” The Annals of the American Academy of Political and Social Science 546, no. 1 (1996): 132–40.CrossRefGoogle Scholar

82 Tushnet, Graber, Levinson, and Vermeule, “The Administrative State: Law, Democracy, and Knowledge.”