Biden administration knew its racial preferences were unconstitutional

Biden administration knew its racial preferences were unconstitutional
Joe Biden giving 'his word as a Biden.' (Image: AIR.TV screen grab)

Earlier this year, judges in Florida, Tennessee, and Wisconsin ruled against the Biden administration’s exclusion of white farmers from debt relief. The judges found that was racial discrimination that likely violated the Constitution. In response, Agriculture Secretary Tom Vilsack blasted the farmers who brought those constitutional challenges, suggesting that they were racially insensitive and that their challenges were meritless. Vilsack claimed that the provision excluding white farmers was “one of the most significant pieces of civil rights legislation in decades.”

But privately, the Agriculture Secretary apparently realized that the racial exclusion of whites was unconstitutional. An advocate for black farmers recounts that Vilsack’s team warned him that debt relief for black farmers was unconstitutional.

In a June 2 email, Lawrence Lucas of Justice for Black Farmers Group closes by noting, “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’s a reference to when Vilsack was managing the Agriculture Department’s transition from the Trump administration to the Biden administration.

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The email can be found at this link. It was released on August 18, in response to a lawsuit against the Agriculture Department by the Bader Family Foundation. It sued the Agriculture Department for failing to respond to a FOIA request from it and Liberty Unyielding.

Federal judges have temporarily blocked racial handouts in President Biden’s $1.9 trillion “American Rescue Plan.” It offered certain kinds of benefits to non-whites, such as debt relief for non-white farmers, and aid to non-white restaurant owners. But whites were excluded. Judges found that was likely unconstitutional.

The first ruling against racial handouts to black farmers was by a federal judge in Wisconsin. As the New York Post reported:

A federal judge has put the brakes on a nearly $4 billion Biden administration effort intended to provide debt relief to farmers of color, noting that the program doesn’t even consider the financial status of applicants — just their race.

The relief program, launched in March under Biden’s American Rescue Plan Act, paid up to 120 percent of the loans for farmers or ranchers who are black, Hispanic, Latino, American Indian or Alaskan native and Asian American or Pacific Islander.

The $3.8 billion initiative drew an April lawsuit in Wisconsin Federal Court by 12 white farmers and ranchers from nine states — who said they were excluded from the program due to their race.

Judge William Griesbach issued a temporary restraining order Thursday halting the program while the case is decided.

Griesbach pointed out that the United States Department of Agriculture provided the debt relief “without actually considering the financial circumstances of the applicant,” and that there is no evidence of “intentional discrimination” by the agency in recent agriculture subsidies or pandemic relief efforts.

The “only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin,” Griesbach wrote. “Plaintiffs are completely excluded from participation in the program based on their race.

Past Democratic administrations paid billions to black farmers, claiming the Agriculture Department discriminated against them well into the 1990s. But discrimination against blacks in the 1990s is not recent enough to justify giving them racial handouts today. For example, benefits for women were declared unconstitutional because the government providing them hadn’t discriminated against women for 14 years. (See Brunet v. Columbus (1993)). And a city’s affirmative action plan for blacks was invalid where blacks hadn’t been discriminated against by a city in 18 years. (See Hammon v. Barry (1987)).

Moreover, Biden’s “American Rescue Plan” doesn’t just give debt relief to black farmers; it also gives preference to Hispanic, American Indian, and Asian American farmers, even though there’s no evidence that groups like Asian Americans have been discriminated against by the Agriculture Department in recent years.

Judges have ruled that discrimination against black people can sometimes be remedied through affirmative action in their favor. But it can’t be remedied with affirmative action for all non-whites, including those who aren’t black, as courts have ruled in cases like Builders Association v. City of Chicago (2001).

For example, discrimination against blacks didn’t justify an affirmative-action program that benefited not just blacks, but also Pacific islanders. So that whole affirmative-action program was struck down by a court in L. Feriozzi Concrete Co. v. CRDA (2001).

Biden’s “American Rescue Plan” also excluded white restaurant owners from financial assistance. On May 27, a federal appeals court issued an injunction against the Biden administration, finding that was discriminatory and unconstitutional.

As the court noted in Vitolo v. Guzman, Biden’s American Rescue Plan was racially arbitrary, providing “preferences for Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners.” “Imagine two childhood friends — one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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