Gary Baise Commentaries
USDA loses again on race-based statute
July was a good month for farmers, and a terrible month for USDA and Secretary Tom Vilsack.
On July 1, Sid Miller, citizen-rancher and Texas Commissioner of Agriculture, gave the Secretary of Agriculture and USDA a lesson in the Constitution of the United States. Mr. Miller, along with other farmers and ranchers, stopped USDA from administering a loan-forgiveness program authorized by American Rescue Plan Act of 2021 (ARPA). This is the Act passed by Congress that was to “…provide a payment in an amount up to 120% of the outstanding indebtedness of each socially disadvantaged farmer or rancher as of January 1, 2021.”
This was not only a victory for Mr. Miller, but he also brought a class action. To sustain a class action, the class should be represented adequately, it should be defined, and clearly ascertainable. Mr. Miller won on all the requirements.
USDA of course opposed Mr. Miller and had the audacity to respond, “…the USDA has not acted or refused to act on any request by plaintiffs for debt relief…” This argument is so silly that it is hard not to laugh out loud. Numerous times the U.S. Supreme Court has stated “Government policies that classify people by race are presumptively invalid.”
The judge in Mr. Miller’s case slammed Secretary Vilsack and USDA by writing, “Instead of demonstrating any strong basis, the Government’s evidence of a compelling interest is a mixed bag.” USDA’s case was based on the idea that there was intentional discrimination reaching back to 1982 and listed a report from the U.S. Commission on Civil Rights which showed the Farmers Home Administration, now part of FSA, “…provided inferior loans and services to blacks as compared to whites.”
Did the lawyers know?
The Department of Justice (DOJ) lawyers, along with USDA lawyers, must have known they had a terribly weak case to go up against Mr. Miller and others. In fact, the Court wrote “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.”
This quote comes from a case you may remember back in the 1970s entitled the Bakke case. You just have to shake your head to believe the DOJ and USDA lawyers could justify the race cap set forth in the ARPA Act of 2021.
U.S. District Court Judge Reed O’Connor ruled that Mr. Miller met the burden for class certification, and therefore he certified the proposed classes proposed in Mr. Miller’s case. As also indicated, Mr. Miller got his preliminary injunction against Secretary Vilsack and USDA, and now may proceed in this case. It will be interesting to see if the Secretary and USDA do proceed in this case with the clearly unconstitutional ARPA. This decision was filed on July 1, 2021, and the length is 24 pages. Now that Secretary Vilsack and the USDA have been ordered not to discriminate on the basis of race or ethnicity, one can only assume that USDA and its Secretary will stop the administration of ARPA. The Court wrote very clearly “This prohibition encompasses: (a) considering or using an applicant Class Member’s race or ethnicity as a criterion in determining whether that applicant will obtain loan assistance, forgiveness, or payments; and (b) considering or using any criterion that is intended to serve as a proxy for race or ethnicity in determining whether an applicant Class Member will obtain loan assistance, forgiveness, or payments.” We will see if Secretary Vilsack and his lawyers adhere to the Constitution. Only time will tell.