Published on June 14, 2021, by The RF Angle, here
The Biden Administration, and indeed the entire ‘progressive left,’ was dealt a major blow last week when the U.S. District Court for the Eastern District of Wisconsin issued a Temporary Restraining Order against the U.S. Department of Agriculture (“USDA”), halting the Biden-controlled bureaucratic agency from implementing a loan forgiveness program that specifically excludes white farmers and ranchers under the American Rescue Plan Act of 2021. While this restraining order is certainly not the final disposition of the case, it is a clear indicator of how the court is interpreting the Administration’s arguments thus far. The court formally acknowledged that the plaintiffs (working against the Biden administration) are “…likely to succeed on the merits of their claim that [the agency’s] use of race-based criteria in the administration of the program violates their right to equal protection under the law.”
While a case between farmers and the USDA may not seem very flashy at first, this case is actually a preview of an epic legal and intellectual showdown that will unfold over the course of the next year at Federal District Courts all over the country and eventually at the Supreme Court. This isn’t really about farm subsidies; the concept of ‘racial equity’ itself is about to go on trial – this is a sneak peak.
The Biden Administration has whole-hardheartedly embraced the far-left concept of ‘racial equity’ as opposed to the more traditional concept of ‘racial equality.’ The later is widely understood to mean equality under the law, with firm legal roots in the 14th Amendment’s “equal protection” clause, the Civil Rights Act of 1964 and a robust body of case law promulgated over the past 50 years by a mostly left-leaning Supreme Court. On the other hand, the relatively new concept of ‘racial equity’ is much more vague. It appears to be the idea that disparities in outcomes among racial groups are de facto proof of racism in the systems associated with those outcomes, and therefore application of the law to specific racial groups, at the exclusion of others, is justified. In other words, unequal application of the law is acceptable if it is done, ostensibly, for the purpose of making outcomes more equal.
To accept this line of logic one must accept the following two flawed arguments: First, that unequal outcomes, by themselves, are sufficient proof of a flawed system – no other factors could reasonably be effecting those outcomes. Secondly, that the Equal Protection clause of the U.S. Constitution should be reinterpreted to mean equal outcomes in law rather than equal application of laws.
These arguments are likely to be met at the Supreme Court like a tree trunk is met by a wood-chipper, but they must make their through the legal system first. This farm subsidy case is one of our first previews of how the judiciary will interpret policies of ‘racial equity.’ The Biden Administration made the expected argument in this case, that exclusion of white farmers from the program is justified based on the fact that similar previous programs overwhelmingly benefited white farmers, because the vast majority of farmers are white. They further argue that this disparity (the fact that most farmers are white) demonstrates systemic racism despite the fact that no specific instance of racial discrimination against a single individual or entity has been offered as an example. The court reacts by stating:
“…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. 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. Aside from a summary of statistical disparities, Defendants have no evidence of intentional discrimination by the USDA in the implementation of the recent agriculture subsidies and pandemic relief efforts.”Faust v. Valsak, USDC for Eastern Dist WI, Case No. 21-C-548, at p.5
Essentially, the District Court is cutting down the concept of ‘racial equity’ at its knees by rejecting its fundamental underpinning – the idea that unequal outcomes among racial groups are themselves demonstrative of systemic racism.
This case is just the first battle in a lengthy legal and intellectual war that is about unfold in the American judiciary over the next year, as policies promoting the far-left concept of ‘equity’ must now be defended on legal grounds. As challenges to these radical policies inevitably work their way up to the Supreme Court, the left will have to articulate specifically how it intends to justify policies that squarely fly in the face of long-held interpretations of equal protection, basic fairness and common-sense itself. How those arguments are formed and how our courts react to them is of tremendous importance to every American and will directly impact the immediate future of our society.
A deeper discussion about this case, authored by renowned Constitutional Law Professor Jonathan Turley can be read on his blog, here.