WASHINGTON – Agriculture Secretary Tom Vilsack must not spend money from a debt forgiveness program that excludes white farmers and ranchers, federal judges in Florida and Texas ruled.
District Judge Marcia Howard of Jacksonville enjoined payments on June 23, and District Judge Reed O’Connor of Forth Worth did the same on July 1.
O’Connor also certified a national class action, an order which could affect a suit pending before Chief U.S. District Judge Nancy Rosenstengel in East St. Louis.
Pacific Legal Foundation of Sacramento filed the suit in June, for Marion County farmers Ryan Kent, Matthew Morton, and Joshua Morton.
Justice Department trial counsel Michael Knapp moved to stay the proceedings on July 14, claiming O’Connor’s order made other litigation unnecessary.
He wrote that Vilsack would file motions to stay all related cases.
Congress created the program in March, for “socially disadvantaged” farmers and ranchers who borrowed through Farm Service Administration.
By previous law, socially disadvantaged means everything but white.
Congress authorized payment up to 120 percent of outstanding debt for farmers and ranchers who qualify.
Constitutional challenges began in April, and 12 district judges in nine states currently preside.
In Jacksonville, Howard found Congress moved with great speed to address the history of discrimination but didn’t move with great care.
She found Congress didn’t turn to a race-based remedy as a last resort, but as an expedient and simplistic approach.
“The constitutional right to equal protection guarantees that racial classifications will be permitted only with the most exact connection between the justification and classification,” Howard wrote.
She found no way to construe the law to provide debt relief to a white farmer.
“The court has no authority to rewrite the law to extend that assistance to persons that Congress did not intend to benefit,” she wrote.
She wrote that contrary to the government’s contention, the court would have no authority to order relief if the plaintiff prevailed.
She found that without an injunction, the plaintiff would have no remedy at all; she found little evidence that Congress considered race neutral alternatives and she found little evidentiary support for the magnitude of relief.
In Fort Worth, the government claimed it could use racial classifications to remedy lingering effects of past discrimination.
It claimed Congress narrowly tailored the law to achieve a compelling interest.
It claimed the agriculture department doesn’t currently discriminate, and instead offered evidence of discrimination in reports from 1982 and 2011.
Like Howard, O’Connor didn’t trust the government’s suggestion that plaintiffs would achieve debt relief if they prevailed on the merits.
“While the government may at times act like it, the public fisc is not bottomless, and at any time, Congress can turn off the spigot,” O’Connor wrote.
He wrote that he would violate the appropriations clause of the Constitution if he extended debt relief to them.
“Given the government’s sovereign immunity and plaintiffs’ inability to seek damages retrospectively, these injuries are irreparable,” he wrote.
He quoted a Supreme Court decision that prioritized compensation for past discrimination is foreclosed as a matter of law.
He summarized evidence of the government’s compelling interest as a mixed bag.
“On the one hand, the government points to cases where the USDA settled claims for past discrimination, leading Congress to enact special legislation addressing the civil rights complaints,” he wrote.
“On the other hand, the government admits that the USDA is not currently discriminating against any socially disadvantaged farmers or ranchers.”
He found statistical disparity alone doesn’t establish intentional discrimination.
He wrote that finding intentional discrimination “requires a logical leap as well as a leap back in time.”
He found past discrimination “too attenuated from any present day lingering effects to justify race based remedial action by Congress.”
“The court is skeptical of racial parity arguments, as they tend to sound a lot like racial balancing, something abhorrent to the concept of equal protection,” he wrote.
He found the program provides relief to individuals who may never have experienced discrimination or pandemic related hardship, and fails to provide relief to those who have suffered discrimination but don’t hold a qualifying loan.
He found a “check the box” approach far different from the individualized review in a narrowly tailored classification system.
He found the government failed to explain how exclusion of races or ethnicities benefits those already eligible or the public at large.
“Even if it could, the inherent harm from an unlawful government run racially discriminatory program is detrimental to the public interest,” he wrote.
District Judge William Griesbach of Green Bay, Wisc., endorsed Howard’s action on July 6.
He stayed a motion of plaintiffs for a preliminary injunction, stating Howard gave them the protection they sought.
He wrote that he wouldn’t deny the motion and would consider it if Howard’s order was vacated or materially altered.
“To be sure, plaintiffs are entitled to a decision on the merits of the case they have brought,” he wrote.
He closed with a line from Hirabayashi v. United States, a Supreme Court decision from 1943.
That Court stated, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”