Litigating Welfare Rights: Medicaid, SNAP, and the Legacy of the New Property

76 Pages Posted: 5 Nov 2019 Last revised: 1 Jun 2021

See all articles by Andrew Hammond

Andrew Hammond

Indiana University Maurer School of Law

Date Written: October 18, 2019


In 2017, the Republican-controlled Congress was poised to make deep cuts to the nation’s two-largest anti-poverty programs: Medicaid and the Supplemental Nutrition Assistance Program (SNAP), commonly known as “food stamps.” Yet, despite having a unified, GOP-led federal government for the first time in over a decade, those efforts failed. Meanwhile, the Trump Administration and its allies in state government continue to pursue different strategies to roll back entitlements to medical and food assistance. As public interest lawyers challenge these agency actions in federal court , roughly five million Americans’ health insurance and food assistance hang in the balance.

This Article asks why Medicaid and SNAP have proven so resilient. The answer lies in the fiscal federalism that governs them and the federal litigation that reinforces them. Food and healthcare programs for poor Americans are shaped by several institutions: Congress, federal and state agencies, state legislatures, and courts. The federal government pays for 100% of SNAP benefits. States pay for up to half of the costs of administering the program, but SNAP’s substantive benefits are free to the states. For Medicaid, states contribute to the substantive benefits, but the federal government pays the lion’s share. As one would expect, when the substance of the benefit is free but the procedures surrounding the benefit are not, states are reluctant to impose procedural barriers for which the state must pay to prevent its residents from accessing benefits which cost the state nothing. As a result, the fiscal rules surrounding these programs engender an unholy, but not unstable alliance between public interest lawyers and state administrators—one that prevents the gutting of these benefit programs. When states do attempt to restrict access to these programs, public interest lawyers can rely on statutory provisions and administrative practice to contest these cuts in federal court.

In unearthing this legal infrastructure, this Article offers a new account of welfare litigation, one that sharpens and updates Charles Reich’s theory of government benefits in The New Property. This Article also challenges the conventional wisdom that procedural protections undermine substantive rights. Finally, it disputes the widely held that litigation is a poor tool for protecting poor people’s rights. Rather, public interest litigation has played a key role in Medicaid and SNAP’s durability.

Keywords: poverty law, federal courts, administrative law, legislation, health law

Suggested Citation

Hammond, Andrew, Litigating Welfare Rights: Medicaid, SNAP, and the Legacy of the New Property (October 18, 2019). 115 Nw. U. L. Rev. 361 (2020), University of Florida Levin College of Law Research Paper No. 20-37, Available at SSRN:

Andrew Hammond (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics