We have been discussing a growing list of losses of the Biden Administration in court, a record that began soon after inauguration. Most concerning is the litigation of legal claims that most legal experts viewed as unsustainable given recent Supreme Court precedent. In one such case on the eviction moratorium, President Biden admitted that his own White House counsel and their favorite legal experts all told him that the moratorium would clearly fail but he listened to Professor Laurence Tribe at the urging of Speaker Nancy Pelosi. Despite the pledge to return to a respect for the “rule of law,” Biden openly suggested that they could use the litigation to get as much money out of the door as possible before being barred by the courts. They lost as many of us predicted. Now however there is a new email that suggests that the Biden Administration may have pushed another program that it viewed as presumptively unconstitutional under controlling precedent: the exclusion of white farmers under the debt relief program during the pandemic.
As we discussed earlier, the exclusion has been struck down by judges in various states as racially discriminatory. However, now a document has surfaced as part of discovery by the Bader Family Foundation in its lawsuit against the Agriculture Department. The June 2 emailfrom Lawrence Lucas of Justice for Black Farmers Group ends with an intriguing statement “Please remember it was the Biden/Harris transition team that you headed up that told us that debt relief for Black farmers was ‘unconstitutional.’” That agriculture transition team was headed by now Agriculture Secretary Tom Vilsack.
However, Vilsack then proceeded to add the provision to the law while critics were denounced as effective racists. He claimed that the racial preference was “one of the most significant pieces of civil rights legislation in decades.” The media also heralded the legislation without even addressing the obvious constitutional concerns over its racial classifications. Federal courts later declared it as racial discrimination.
The legislation included a loan-forgiveness program for farmers and ranchers under Section 1005 of the American Rescue Plan Act of 2021 (ARPA). The program pays up to 120% of direct or guaranteed farm loan balances for Black, American Indian, Hispanic, Asian American or Pacific Islander farmers.
As part of the ARPA, Congress appropriated “such sums as may be necessary” to pay for the cost of loan modifications and payments to “socially disadvantaged” farmers and ranchers. § 1005(a)(1). The term “socially disadvantaged farmer or rancher” is defined under 7 U.S.C. § 2279(a). § 1005(b)(3) as a farmer or rancher who is a member of a “socially disadvantaged group.” § 2279(a)(5).
“Socially disadvantaged group” is then defined as “a group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” § 2279(a)(6).
The Biden Administration defines “socially disadvantaged farmer or rancher” to include individuals “who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian, or Pacific Islander.” American Rescue Plan Debt Payments, U.S. DEPARTMENT OF AGRICULTURE, available at https://www.farmers.gov/americanrescueplan.
The lawsuit was previously criticized as baseless or, as NBC reported, part of a “war against equity” by Trump supporters.
Nevertheless, the court found that the program was unambiguously discriminatory since “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, “Plaintiffs are excluded from the program based on their race and are thus experiencing discrimination at the hands of their government.”
A federal judge in Wisconsin found on the required compelling interest that the Administration failed to state a case:
Here, Defendants lack a compelling interest for the racial classifications. Defendants assert that ‘Congress targeted the debt payments in Section 1005 to the minority groups that it determined had suffered discrimination in the USDA programs and that had been largely left out of recent agricultural funding and pandemic relief.’ But Defendants have not established that the loan-forgiveness program targets a specific episode of past or present discrimination. Defendants point to statistical and anecdotal evidence of a history of discrimination within the agricultural industry. But Defendants cannot rely on a ‘generalized assertion that there has been past discrimination in an entire industry’ to establish a compelling interest. J.A. Croson Co., 488 U.S. at 498; see also Parents Involved, 551 U.S. at 731 (plurality opinion) (‘remedying past societal discrimination does not justify race-conscious government action’). Defendants’ evidence of more recent discrimination includes assertions that the vast majority of funding from more recent agriculture subsidies and pandemic relief efforts did not reach minority farmers and statistical disparities.
According to this email, that may also have been the conclusion of the Biden transition team before the Administration introduced the provision and declared it to be “one of the most significant pieces of civil rights legislation in decades.”