SNAP benefits—formerly known as “food stamps” for low-income households—are in the sights of President Donald Trump and the Republicans as they seek to cut down on federal expenditure and improve the health of Americans.

Former President Joe Biden increased the amount paid to recipients of SNAP benefits by 21 percent to help poorer families with rising food costs, food insecurity, and healthier eating.

Trump has now frozen swathes of federal grant and loan spending under a broad review of costs to tackle waste, though SNAP payments are expected to continue as normal for the time being.

Republicans in Congress also proposed legislation to increase restrictions on SNAP to stop purchases of certain sugary foods—”soft drinks, candy, ice cream, prepared deserts such as cakes, pies, cookies, or similar products”—to help fight obesity.

Broadly speaking, does curtailment of SNAP to healthy, nutritious foods only face any constitutional blockers? Newsweek asked legal experts for their views. Here’s what they told us.

David Super: Disputes and Confusion Over Healthy Foods Raise Constitutional Questions

Although many people support the idea of healthy eating, people disagree wildly on what foods are healthy.

For example, extensive evidence shows that raw milk increases the threat of many food-borne illnesses, yet President Trump’s nominee to be HHS Secretary promotes raw milk as healthy.

This would lead to numerous disputes in which food producers insisted that their foods qualified as healthy. The Due Process Clauses would govern what procedures must be followed to make these determinations.

In addition, because the list of what foods are and are not permissible would be extremely complex, both recipients and retailers would inevitably make mistakes.

Under current law, spending SNAP benefits on ineligible items is a crime.

Imposing criminal penalties on a low-income parent or a convenience store clerk because they confused one brand of juice or cereal with another would raise constitutional questions of lack of fair notice of what the criminal law required.

David A. Super is Carmack Waterhouse Professor of Law and Economics at the Georgetown University Law Center.

Cary Coglianese: SNAP Reform Poses Constitutional Issues—and Moral Ones, Too

The U.S. Constitution mainly provides rights that protect people from harm from the government.

As recognized by the U.S. Supreme Court in a 1989 case of DeShaney v. Winnebago County Department of Social Services, among others, the Constitution doesn’t offer individuals rights to receive vital governmental services—even food.

So, under existing legal understanding, no one can claim that they have a constitutional right to SNAP benefits per se. These benefits are established by legislation.

Once benefits have been established, though, they cannot be denied or taken away from specific individuals in a manner that offends those individuals’ rights to due process or equal protection, such as if specific individuals were denied benefits because of their race, religion, or national origin.

It would similarly be unconstitutional if the government established across-the-board policies that provided SNAP benefits that discriminated against people in violation of the Equal Protection Clause.

When it comes to proposals to limit SNAP benefits to certain kinds of food purchases, for example, one question would be whether, in defining some foods as “healthy,” the government had established standards that disproportionately burdened certain groups of people based on their religious views or religiously informed dietary practices, or if they otherwise discriminated against certain groups of people based on other protected categories, such as race.

Predicting how the courts would answer this question is hard to say in the abstract and probably would depend on what the actual standards for “healthy foods” would say.

Of course, this means that constitutional objections to SNAP reform might not prove to be viable ones at all if the government takes care in exactly how it defines healthy foods.

All this said, even if there are no constitutional objections to limiting SNAP benefits to healthy foods, that doesn’t mean that there couldn’t be statutory, policy, or moral concerns about how such reforms would be made.

Just because a policy reform might be constitutional, that doesn’t mean it is wise or humane.

Cary Coglianese is Edward B. Shils Professor of Law and Professor of Political Science, and Director of the Penn Program on Regulation, at the University of Pennsylvania’s Carey Law School.

Elizabeth Weeks: ‘Carrot-and-Stick’ Spending Arrangement Is Key

My understanding of legislation authorizing the food stamp program (now SNAP) is that it is a conditional spending program like Medicaid.

The federal government cannot simply mandate states to carry out federal programs but can offer “carrots,” or incentives, in the form of federal funding to encourage states to do so.

As part of that, the federal government can place certain requirements or restrictions on the arrangement, and states have some flexibility to propose their version of a state plan to the federal government for approval. The “stick” is that noncompliant states may lose federal funding.

SNAP programs already commonly restrict or prohibit purchasing alcohol, cigarettes and tobacco products, household cleaning products, vitamins, medicines, and nonfood items.

Similarly, states have prohibited use of EBT cards (TANF cash assistance) for use in certain venues, such as tobacco, liquor, gaming, casinos, adult venues, and gun stores.

Accordingly, it may seem in the same spirit to prohibit use of SNAP to purchase soda, candy, and other junk food—other “vices” that do not seem consistent with the purpose of the program to provide basic nutritional substance to low-income individuals and families.

I’m not sure there’s a constitutional challenge, due to the carrot-and-stick conditional spending arrangement (subject to some limits, e.g., the condition cannot be too unrelated to the purpose of the program; the condition might leave states with no choice but to participate in the federal program, as was held in NFIB v. Sebelius regarding ACA Medicaid expansion).

But I do think there’s literature demonstrating that prohibiting use of SNAP to purchase unhealthy foods won’t really change consumption habits and isn’t the best way to address that concern.

For one, it’s difficult to define what is “healthy” or “unhealthy” food—a granola bar might seem healthy, but it could actually contain lots of sugar and trans fat. Thus, there are administrative costs on the program and retailers with adding that type of restriction.

Also, SNAP, by its name, is a “supplemental” nutrition program; it typically does not cover a household’s entire food budget. Even if soda is the number one item purchased with SNAP benefits, households can swap what they purchase with SNAP for what they purchase with other means.

Another objection is more philosophical—should the government be in the business of policing low-income individuals’ food choices when those with means can freely purchase unhealthy food? In essence, the suggestion is that there are no inherently “good” or “bad” foods; it’s all about moderation.

Of course, another explanation for why previous attempts to restrict or prohibit purchase of unhealthy foods with SNAP is the corporate food and beverage lobby.

Elizabeth Weeks is Charles H. Kirbo Chair in Law at the University of Georgia’s School of Law.

Richard Epstein: What Matters Is How to Implement SNAP Cuts

I generally am with the effort to cut back on the program.

Two main reasons:

First, there is the question of what the money is spent on? Money is fungible so that the increase for food stamps could allow recipients to divert free cash to other ventures, far outside the program—vacations, sporting events, or anything. Yet there is weak monitoring.

Second, how did people get along before the Biden increases? They made adjustments so that if there was no catastrophe then, then why now? The Democratic argument makes all increase a one-way ratchet.

What matters a lot is how to implement the cutbacks.

Richard Epstein is Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute at NYU’s School of Law.