EAST ST. LOUIS – Including white farmers and ranchers in a debt relief law that excluded them wouldn’t cure defects in the law, white farmers Joshua Morton and Matthew Morton of Kell asserted on March 15.
Their counsel Wencong Fa rejected an olive branch that U.S. agriculture secretary Tom Vilsack extended two weeks earlier.
Vilsack claimed Congress would rather expand the program than abandon it.
He claimed he could expand debt relief from $4 billion to $40 billion because Congress granted an unlimited appropriation.
Fa responded that Vilsack offered scarce support for arguing that Congress would have remedied the law’s infirmity with a ten-fold extension of payments.
He claimed Vilsack failed to explain why Congress would give debt relief to all farmers instead of targeting relief to those threatened with foreclosure.
He claimed Vilsack would require Chief U.S. District Judge Nancy Rosenstengel not only to extend eligibility to the Mortons but also to issue payments to them.
He claimed a Florida judge held that sovereign immunity would bar such payments.
Congress passed the debt relief law as Section 1005 of a virus bill last year.
It provided that “socially disadvantaged” farmers and ranchers who borrowed with government guarantees would receive 120 percent of their loans.
It defined socially disadvantaged as anything but white.
U.S. district judges in Florida, Tennessee, and Wisconsin enjoined payments.
District Judge Reed O’Connor of Forth Worth, Texas, enjoined payments and certified a class action for white farmers with loan guarantees.
He included the Mortons in the class, but they asked Rosenstengel to keep their case and she kept it.
She found that they advanced a different theory than O’Connor’s plaintiffs and that she could advance to summary judgment motions sooner than O’Connor.
Vilsack moved for summary judgment on March 1.
His counsel Kyla Snow of the Justice Department claimed 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.
Then she extended the olive branch.
She wrote that if Section 1005 violated equal protection, Rosenstengel could extend benefits to those Congress excluded.
“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.
Fa declined the $40 billion compromise and challenged Section 1005 as it stands.
“There is good reason that defendant’s brief fails to mention a single case in recent memory that examines a law like Section 1005: None exists,” he wrote.
“No other government program in recent history distributes benefits and burdens by focusing so much on an individual’s race.
“There is no dispute that throughout the United States, every minority farmer or rancher with an eligible loan is automatically entitled to debt relief.
“Every non-minority farmer or rancher, regardless of individual circumstances, is categorically excluded.”
He claimed Vilsack didn’t dispute that there have been substantial efforts to address discrimination in the agriculture department.
He claimed Vilsack didn’t dispute that the department doesn’t currently discriminate against minority farmers.
He claimed a department report from last July showed the vast majority of minority farmers weren’t delinquent on their loans.
He claimed distribution of relief to every minority farmer with an eligible loan was far broader than any remedial interest that Vilsack might have.
“Defendants can point to no other program as sweeping as this one and have failed to come remotely close to producing the substantial evidence that would be required to justify it,” Fa wrote.
He claimed Vilsack treated minority farmers as “a monolithic group that is poor, unsuccessful at farming, and distrusting of USDA.”
He claimed trust should be built on a foundation of education, outreach, and administration without preferences based on arbitrary considerations.
Fa practices at Pacific Legal Foundation in Sacramento.