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In legal papers filed in federal court, Associate Attorney General Stanley Woodward Jr. does not dispute that the U.S. Department of Agriculture has about $5.25 billion in a "long term emergency fund.'' He said that "provides critical support in the event of natural disasters and other uncontrollable catastrophes.''

But Woodward also is telling U.S. District Court Judge Indira Talwani that even if she accepts the states' arguments about harms to be caused if food stamps dry up, she has no power to give them what they want.

"Even assuming USDA had discretion to reallocate these funds, the question of how to allocate limited funds among multiple critical safety-net programs, when there are insufficient funds, is one that the agency is empowered to make — not a federal court, and certainly not plaintiffs,'' he wrote in Wednesday's filing.

The Justice Department's attempt to immediately kill the lawsuit, which was filed just days ago, is no surprise.

The Democratic attorneys general of the states that sued, including Arizona Attorney General Kris Mayes, want Talwani to issue a temporary restraining order as soon as possible to keep the food-stamp funds from drying up — which is set to happen Saturday.

The federal government is shut down because the Senate lacks the votes to approve a House-passed "continuing resolution'' to keep government operating. Senate Democrats, whose votes are needed, are refusing to go along until the Republicans agree to reinstate tax credits that help underwrite the cost of health insurance by those covered under the federal Affordable Care Act.

That stalemate brought many government programs to a halt on Oct. 1 and led to the firings or layoffs of some federal employees.

But by that date, the USDA had already appropriated the funds for October payments to the Supplemental Nutrition Assistance Program known as SNAP, or food stamps. With no legislative action so far this month, the agency has told states it cannot provide the money for SNAP beneficiaries to purchase eligible items when the new month begins Saturday.

For Arizona, that loss comes out to more than $161 million for nearly 900,000 state residents who get an average household benefit of about $358 a month. Nationally, the USDA says, the price tag is between $8.5 billion and $9 billion each month.

'A proverbial 'run on the bank'

The lawsuit filed Tuesday by Mayes and others contends Congress gave the USDA specific permission to spend from the contingency account in case of a government shutdown. Mayes said those dollars have been used in the past for precisely this kind of situation.

Not true, Woodward told Talwani. He said this is not a lapse in appropriations but "a unique circumstance'' where the failure of Congress to act means there simply is no appropriation at all.

What the states want also is illegal, Woodward argues. He said any order for USDA to use its contingency funds "would be a blatant violation of the Antideficiency Act, a criminal statute that forbids the United States from making such an obligation without an appropriation.''

He also noted that the fund doesn't have enough money to fully fund the program for all states. What would result, Woodward wrote, would be "a proverbial 'run on the bank' as states and beneficiaries exploit the pot of funds before it is depleted.''

He also told the judge it is unrealistic to assume USDA could solve the problem of not enough cash by providing just partial benefits.

"Such a partial payment has never been made — and for good reason,'' Woodward wrote. 

"It would require each state to recalculate the benefits owed based on the reduced funds available,'' he said. "USDA estimates that such a calculation, involving complicated system changes and processes dictated by statute and regulation, would take weeks, if it can be done at all — thus significantly delaying issuance of benefits.''

Says states can't sue over harms to residents

Woodward said there's an even simpler reason to throw out the lawsuit. He said the states lack the legally required standing to be in court in the first place.

Court rules entitle only those who claim actual harm to file suit, he said. That would be the SNAP beneficiaries.

He said there are court rulings that say states cannot go to court claiming harms on behalf of their residents.

Woodward also said Arizona and other states are arguing that if the USDA funds don't start to flow, the states themselves could put in their own money — and seek reimbursement if Talwani concludes the federal agency acted illegally in failing to fund November payments.

That, in fact, is precisely what Mayes is proposing.

She is asking Democratic Gov. Katie Hobbs to call the Arizona Legislature into special session to use some of the $1.6 billion in the state's rainy day fund to make up for the missing benefits. Mayes said that money could be recouped if the judge sides with Arizona and the other states.

The governor, however, has been noncommittal, with her press aide Christian Slater saying Wednesday that Hobbs "is considering all options.''

Woodward, however, is telling the judge that having the states put up the cash — and then argue they are entitled to be reimbursed — would amount to "a self-inflicted injury'' the states cannot legally demand that USDA fix.

Ultimately, though, Woodward is telling Talwani it all comes down to whether the USDA has the discretion to decide how to spend its money — especially when there is no actual congressional directive to use a certain amount to fund SNAP benefits.

"The Supreme Court has long recognized that an agency's determination of how to allocate funds among competing priorities and recipients is classic discretionary agency action,'' he wrote. 

He also is telling the judge that if she rules against the USDA, she should delay her order for 48 hours to give the government a chance to file an emergency appeal.