EAST ST. LOUIS – Agriculture Secretary Tom Vilsack continues to defend exclusion of white farmers and ranchers from a debt relief program but suddenly suggests he could include them for an already available $36 billion.
His counsel Kyla Snow of the Justice Department extended his olive branch at the end of a motion for summary judgment filed March 1 against white plaintiffs.
Snow claimed Congress would rather expand the program than abandon it entirely.
She claimed Chief U.S. District Judge Nancy Rosenstengel could enter a $36 billion order because Congress provided an appropriation with no limit.
Congress passed the program last year as Section 1005 of a virus bill. It authorized 120 percent forgiveness of loans that the agriculture department guaranteed, for farmers and ranchers in every racial class but white.
Texans filed the first constitutional challenge at district court in Fort Worth. Eleven suits followed, from Tennessee to Wyoming.
Joshua Morton and Matthew Morton of Kell sued in the SouthernDistrict of Illinois court in June.
Several judges entered injunctions against distribution of funds.
District Judge Reed O’Connor of Forth Worth certified a class action.
He included the Mortons in the class and told them that if they wanted to remain in Rosenstengel’s court they should seek relief from her.
They sought it and received it last November.
She found their case didn’t duplicate the Texas litigation.
She found the Texas suit alleged civil rights violations and the Mortons alleged violation of the Fifth Amendment and the Administrative Procedures Act.
She found that dispositive motions in Texas wouldn’t be completed until April.
Parties in her court have completed their dispositive motions.
Snow’s summary judgment motion stated that Congress narrowly tailored a remedy for a compelling interest.
“It provides the funds necessary for minority farmers to pay off their debts and not only to keep their farms but also to grow and develop them in ways that past discrimination has prevented,” Snow wrote.
“However, should the court conclude that Section 1005 violates plaintiffs’ equal protection rights, the court will face a question of remedy.”
She claimed courts ordinarily remedy an equal protection violation by extending benefits to those excluded.
“Such a remedy better comports with Congress’s evident intent and awards the plaintiffs in this action a material benefit without depriving non parties of the benefits Congress intended for them,” she wrote.
She cited courts that extended benefits for survivors, disabilities, food stamps, and military spouses.
"Whether to extend the benefits or nullify the statute requires a judgment about which remedy Congress likely would have chosen had it been apprised of the constitutional infirmity,” she wrote.
“Congress anticipated the program would cost a certain amount but it nonetheless enacted an unlimited appropriation to ensure the minority farmers would obtain relief even if the cost exceeded Congress’s estimate.”
She claimed the vast majority of loans covered by Section 1005 are available to individuals who couldn’t borrow without a guarantee. She claimed almost all borrowers who would benefit from extension of the program, meaning whites, face difficulty in assessing capital.
“This provides at least some basis to think that holders of these loans generally are more at risk of foreclosure or failure than are farmers without such loans, and that Congress therefore would have wanted to provide relief to additional individuals who hold these kinds of loans rather than to none,” she wrote.
Pacific Legal Foundation in Sacramento represents the Mortons.