Did The Biden Administration Commit to a Knowingly Unconstitutional Act? New Evidence Surfaces on the Farm Debt Relief Provision

We have been discussing a growing list of losses of the Biden Administration in court, a record that began soon after inauguration. Most concerning is the litigation of legal claims that most legal experts viewed as unsustainable given recent Supreme Court precedent. In one such case on the eviction moratorium, President Biden admitted that his own White House counsel and their favorite legal experts all told him that the moratorium would clearly fail but he listened to Professor Laurence Tribe at the urging of Speaker Nancy Pelosi.  Despite the pledge to return to a respect for the “rule of law,” Biden openly suggested that they could use the litigation to get as much money out of the door as possible before being barred by the courts. They lost as many of us predicted. Now however there is a new email that suggests that the Biden Administration may have pushed another program that it viewed as presumptively unconstitutional under controlling precedent: the exclusion of white farmers under the debt relief program during the pandemic.

As we discussed earlier, the exclusion has been struck down by judges in various states as racially discriminatory. However, now a document has surfaced as part of discovery by the Bader Family Foundation in its lawsuit against the Agriculture Department. The June 2 email from Lawrence Lucas of Justice for Black Farmers Group ends with an intriguing statement “Please remember it was the Biden/Harris transition team that you headed up that told us that debt relief for Black farmers was ‘unconstitutional.'” That agriculture transition team was headed by now Agriculture Secretary Tom Vilsack.

However, Vilsack then proceeded to add the provision to the law while critics were denounced as effective racists. He claimed that the racial preference was “one of the most significant pieces of civil rights legislation in decades.” The media also heralded the legislation without even addressing the obvious constitutional concerns over its racial classifications. Federal courts later declared it as racial discrimination.

The legislation included a loan-forgiveness program for farmers and ranchers under Section 1005 of the American Rescue Plan Act of 2021 (ARPA). The program pays up to 120% of direct or guaranteed farm loan balances for Black, American Indian, Hispanic, Asian American or Pacific Islander farmers.

As part of the ARPA, Congress appropriated “such sums as may be necessary” to pay for the cost of loan modifications and payments to “socially disadvantaged” farmers and ranchers. § 1005(a)(1). The term “socially disadvantaged farmer or rancher” is defined under 7 U.S.C. § 2279(a). § 1005(b)(3) as a farmer or rancher who is a member of a “socially disadvantaged group.” § 2279(a)(5).

“Socially disadvantaged group” is then defined as “a group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” § 2279(a)(6).

The Biden Administration defines “socially disadvantaged farmer or rancher” to include individuals “who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian, or Pacific Islander.” American Rescue Plan Debt Payments, U.S. DEPARTMENT OF AGRICULTURE, available at https://www.farmers.gov /americanrescueplan.

The lawsuit was previously criticized as baseless or, as NBC reported, part of a “war against equity” by Trump supporters.

Nevertheless, the court found that the program was unambiguously discriminatory since “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, “Plaintiffs are excluded from the program based on their race and are thus experiencing discrimination at the hands of their government.”

A federal judge in Wisconsin found on the required compelling interest that the Administration failed to state a case:

Here, Defendants lack a compelling interest for the racial classifications. Defendants assert that ‘Congress targeted the debt payments in Section 1005 to the minority groups that it determined had suffered discrimination in the USDA programs and that had been largely left out of recent agricultural funding and pandemic relief.’ But 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. J.A. Croson Co., 488 U.S. at 498; see also Parents Involved, 551 U.S. at 731 (plurality opinion) (‘remedying past societal discrimination does not justify race-conscious government action’). 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.

According to this email, that may also have been the conclusion of the Biden transition team before the Administration introduced the provision and declared it to be “one of the most significant pieces of civil rights legislation in decades.”


101 thoughts on “Did The Biden Administration Commit to a Knowingly Unconstitutional Act? New Evidence Surfaces on the Farm Debt Relief Provision”

  1. There are many openly discriminatory provisions in USDA programs. There is a whole series of aide programs that give “socially disadvantaged” farmers much higher dollar amounts of benefits for the same program. For example a white farmer might qualify for up to $250,000 in grants to rebuild a pumping station while a SD farmer will qualify for up to $475,000 under the same program. There are many such programs. The only unusual thing about the program Mr Turley highlights is that it was litigated against and found unconstitutional. The rest just roll along unmolested.

  2. 1) this whole construct by bidens handlers unconstitutional
    2) It is on it’s face racist
    3) absolutely direct intent to void the constitution
    Is biden a senile old rabid dog barking and biting at common sense and truth…you betcha !.
    Imagine if orange man bad did this exactly like pudd’n head joe…… you leftists would be antifing everything in your fake moral outrage. But your senile pet vomits this out like a furball and you not only love you help lap it up. Says a lot about you seig heil demoratzis. And just like that garbage CDC hold on paying rent….the money they got out the door doing these unconstitutional treasury heists before a court followed the laws and closed it down is gone , laundered … effectively stolen like filthy lucre.

  3. Would love to know, one to one, how many black farmers there even are these days. There was no inherent discrimination in this matter prior to this; they pulled it right out of their behinds and made it real in the opposite direction. Who voted for this? I am ashamed that so many of us are so weak and petty they let an ‘orange man’ they’ll never meet control not just the province of their minds, but also their intrinsic sense of basic human decency. Pathetic and sad, truly. These are not adult humans.

  4. Racist rhetoric, racist policies. Discrimination is discrimination.
    Tearing the nation apart generations after civil rights legislation should have started the healing.

  5. Mr Turley please introduce dislike tab for comments. This article has attracted an unusual number of hateful comments (must have drifted over from The Hill)

  6. “However, Vilsack then proceeded to add the provision to the law while critics were denounced as effective racists.”

    Take note, Iowans. This is very disappointing. 🙁

    1. We don’t have to take note. He was our Governor for 2 terms. Obama’s Sec of Ag for 6 years.

      He’s on official DC swamp rat, and grifter.

      1. Iowan2,
        Yes, I know. I lived in Iowa. I point it out for those folks who may not have been paying close enough attention over the years (I know I wasn’t, at least back then…). I am certainly perplexed by these most recent actions on his part.

  7. Neither the Declaration (i.e. national charter) nor The Constitution take a knee to diversity [dogma] (i.e. color judgment), inequity, and exclusion. Hopefully, we will, once again, stand up to mitigate its progress and associated rites, and stand up for individual and collect (i.e. general Welfare) rights for the People and our Posterity.

    1. General welfare is the most disgusting “clause” in the US constitution. Pros say it justifies anything thus rendering the document meaningless, general welfare means what it meant at the time (https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/755) general spending to help the public. But this has blown completely out of all proportion, nothing should be subsidized, period. It just all creates waste, government does not and cannot create wealth, it only rob’s from those it these days considers serfs. The sooner you learn this, and I hope you will, the sooner you will understand government is not only not your friend it has an active interest in just using you.

    1. Immigration reform and collateral damage in lieu of emigration reform at both ends of the bridge and throughout.

    2. America never did “keep track” of American citizens who went to Afghanistan. There’s no registration process. Some went there as missionaries, contractors, some to teach with various groups based in the US or elsewhere, or for other reasons, but they weren’t required to register with anyone, which is why the US doesn’t know, and can’t know how many are still there. And, some of them don’t want to leave because they married an Afghan citizen or for other reasons. Just another alt-right lie. Biden hasn’t “lost track” of any migrant children, either.

  8. Is acting against the constitution of the U.S. an impeachable offense? In only a few short months we may find out. This thought gives Nancy Pelosi very bad gas. Fluuuup!!!

  9. The question is, should a President implement a policy when he knows that it is unconstitutional? Doesn’t the President take an oath to defend the nation based on the ideas presented in it’s founding document. His aides let him know that what he was doing was unconstitutional but he did it anyway. Biden is a man who neither respects his nation or his sworn oath to protect the nation’s citizenry. A man who loves his country doesn’t blatantly act to undermine the principles of it’s foundation. If you listen long enough a man will tell you who he really is. Let he has ears to hear, hear.

    1. I would assume there are internal legal opinions on these questions, including perhaps from DOJ’s Office of Legal Counsel. The ones for this and the eviction moratorium should be made public. I believe it is a federal criminal offence knowingly to deprive someone of their civil rights. If Biden proceeded in the face of legal advice to the contrary that would appear to me to be an impeachable high crime or misdemeanour.

  10. The Wokes belligerent audacity quakes the soul with another crazy idea “laws are written you, for me, I’ll determine which are ‘appropriate’”. There are so many examples of this lawlessness behavior; this blogs issue is one of them. Woke seems to care not about the Constitution, or the laws therein, if it feels good well by golly will just do it, like Farragut’s famous call ‘damn the torpedoes’. They know not the consequences of their intent.

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