The last time the D.C. Council took the rare step of suing the mayor a decade ago, Chair Phil Mendelson argued that “this is not the government fighting with itself,” but rather “struggling to find the right answer” to complex questions surrounding budget autonomy. Loose Lips would suggest that the former interpretation is much more accurate this time around.

Just as everyone in the Wilson Building was still waking up after a quiet holiday season, Mendelson circulated legislation Tuesday that would allow the Council to take legal action against Mayor Muriel Bowser over her recent refusal to follow the law and expand food assistance benefits for low-income families by nearly $40 million. Lawmakers and advocates have been stewing over her intransigence for a little more than a month now, but a lawsuit (if the Council votes to approve it next week) amounts to a nuclear option in the battle over SNAP benefits. 

Mendelson suggests to LL that his bill would not require a court fight, but merely gives the Council’s attorney the ability to start one in an effort to force Bowser’s hand. (The legislature could also join another, third-party suit as plaintiffs, and LL hears that activist groups could file a case against the mayor within the next few days.) 

Mendelson says he plans to meet with Bowser next Monday alongside At-Large Councilmember Christina Henderson, who steered through the legislation to expand SNAP in the first place. He’s “hopeful” the meeting will help avert any potential unpleasantness. Still, Mendelson says he wanted to get this measure on the agenda to show he’s willing to do what is necessary to “protect the Council’s rights.”

“We have to take a stand in this moment or it’s just going to keep happening,” Henderson says. “We’ll pass something, she’ll sign it, then decide six months later, ‘I don’t want to do it anymore.’ … And the mayor still has the opportunity to change her mind.”

So the question becomes: Will Bowser really want to go to the mattresses to deny hungry families more funds for food? She has so far shied away from addressing the matter publicly despite repeated public protests, and has instead trotted out her deputies to wail about “significant spending pressures” to the Washington Post, but a lawsuit would force a much more public confrontation. The last time the Council sued a D.C. mayor was a relatively dry dispute over whether then-Mayor Vince Gray was adhering to the terms of a ballot measure guaranteeing budget autonomy for the District. And the case attracted plenty of attention back in 2014. 

LL can imagine a much larger dustup this time around when SNAP supporters can credibly accuse Bowser of swiping food off the plates of hungry kids. It wasn’t quite “let them eat cake” moment, but LL has to admit that it wasn’t the greatest optics for Bowser to spend her annual New Year’s Day race exasperatedly declaring that pro-SNAP protesters “all have a right to their speech and we all have a right to our 5K.”

“This isn’t something that’s meant to be played with,” says LaMonika Jones, the director of the nonprofit D.C. Hunger Solutions, who is among those activists weighing how her organization could either participate in or support a lawsuit against the city.

Bowser’s spokesperson did not respond directly to the threat of litigation, but did say in a statement that “with significant fiscal and human resources pressures in our human services cluster, it’s not prudent to increase spending on one program, especially when demand for other programs that support the same people is increasing beyond our current budget.”

“Our goal is for the Council and the executive to work together on more sustainable food investments,” the spokesperson wrote. “As our budgets tighten, we have a responsibility to first fund and sustain critical housing, shelter, and the cash and food assistance benefits already in place.”

If a lawsuit comes together, it would represent a serious escalation in hostilities between the rival wings of the Wilson Building’s fifth floor. Council-mayor feuds aren’t anything new in District politics—consider that former mayors Anthony Williams and Sharon Pratt also drew legislative lawsuits during their terms in office—but lawmakers have generally avoided such direct clashes with Bowser in recent years even as their disagreements have deepened.

Maybe Herroner’s shambolic start to her third term in office has helped embolden the Council for more clear confrontation, particularly after she’s pulled similar budgetary tricks several times in recent years, refusing to fund lawmakers’ favored programs. This time around, the mayor claims her Department of Human Services has something like $75 million in budget gaps and she has to devote any excess tax revenue to closing them. She’s offered similar arguments about why she can’t impose caps on rent increases or issue ID cards for recently arrived migrants.

“The Council is deeply concerned about the mayor’s pattern of taking from safety net programs to pay for her pet priorities,” At-Large Councilmember Robert White said in a statement supporting litigation over SNAP, as he continues to sharpen his recent criticisms of the mayor on these issues.

LL is no lawyer, but it doesn’t look like Bowser has much of a leg to stand on if she ends up in court. Budget language backed by Ward 4 Councilmember Janeese Lewis George earlier this year was exceptionally clear: If the District took in more revenue than Chief Financial Officer Glen Lee was projecting, it would have to spend it on expanding SNAP benefits. Lee certified this fall that the city would have the $39.6 million it needs to bump up the size of SNAP checks for the next year, then confirmed again on Friday that the District’s revenue picture has stayed strong. 

In fact, Lee said the city took in another $83 million beyond its estimates for 2023, prompting Mendelson to argue that “this is an executive issue, not a CFO issue.” There may be holes in the department’s budget, considering how Bowser has balked at funding many human services programs, but Henderson says the mayor’s offered virtually no plausible explanations about how this shortfall appeared. 

“Every time there is supposed to be a meeting for us to talk with the mayor about this stuff, it gets canceled,” Henderson says. “We’re just supposed to trust one side’s word when everybody doesn’t have the same information. All I have are the CFO’s numbers, and he’s telling me there’s more than enough money there.”

What’s more, Attorney General Brian Schwalb has weighed in with a legal opinion, requested by Lewis George, arguing that Bowser has “no independent authority” to refuse to spend this money. This could easily form the basis of the Council’s legal challenge, as they try to argue that Bowser is usurping the legislative branch’s legal authority to pass laws and appropriate funds. (A similar question over the separation of powers animated former Council Chair Linda Cropp’s suit against Williams, after he refused to enforce a law changing the job requirements for the city’s inspector general.)

And then there’s a prospect of a lawsuit from an outside group on behalf of SNAP beneficiaries, who could argue that the city is breaking its promise to roughly 141,000 people across the District to offer more generous food assistance. Henderson notes that the influential Legal Aid Society of DC has already sued the city over its slow processing of SNAP benefits. It did not escape LL’s notice that Executive Director Vikram Swaruup called Bowser’s refusal to expand SNAP “unlawful and unjustifiable” in a Dec. 19 letter. 

The Council could easily work in tandem with outside litigators, and would have the added benefit of some legal firepower alongside its own small team of lawyers. But Jones, the D.C. Hunger Solutions director, cautions that many nonprofits may be wary of challenging the mayor in court when they rely on the city for funding, to say nothing of the residents who would have to put their names on such a suit.

“We’re trying to always keep our residents in the back of our minds,” Jones says. “If they join a lawsuit, they’ve got to worry about how they would be impacted and affected.”

That’s one of many reasons Mendelson is hoping to hash out some sort of deal before going to court. He says he is “more than happy” to hear Bowser out about what sort of budget gaps exist, so long as she acknowledges that she can’t “second guess the Council’s appropriation.”

“My hope is that [a lawsuit] will not come to pass,” he says. But if Bowser won’t budge, he also believes the Council will easily pass the authorization for a lawsuit next week after all 13 members wrote a letter to the mayor opposing her SNAP decision last month. “I haven’t counted votes because I don’t think I need to,” Mendelson adds, a sign of confidence about the Council’s rare unanimity on this issue.

“No one is communicating right now, that’s how we got to this point,” Henderson says. “So if they still don’t want to talk, fine. We’ll talk about it in court.”

This story has been updated.