“Equality before the law” — for a constitutional principle, it is one of the most basic, perhaps the most important.
It is also the idea (at least the one openly stated by right-wing law firms, such as the Wisconsin Institute for Law and Liberty) that is driving the legal injunctions blocking President Joe Biden’s $4 billion debt relief initiative for farmers of color. The effort is part of the American Rescue Plan, a COVID-19 stimulus package.
As the argument runs, it is not fair for any specific group of farmers, although they may belong to historically marginalized groups of people, to be singled out for special treatment.
We are told that farming is tough for everyone in the occupation. White farmers also have debts that could be forgiven. Everyone should have equal access to the same resources. Therefore, Biden’s proposal is being decried as unconstitutional. Yet, as simple and logical as this line of reasoning sounds, the arguments provided are deeply flawed.
What these injunctions really display is a ploy by right-wing political actors and the conservative law firms that give them cover, to gin up the support of rural white people.
There have been three separate injunctions filed — in Texas, Florida and Wisconsin. Each represents white farmers not only from those three states but around the country.
The filing from Wisconsin roots its argument in individual rights. Here, the reasoning is based on the 1995 case Adarand Constructors, Inc. v. Peña, which held that group-based allegations of racism must be scrutinized with respect to the effects on individuals.
Specifically, the plaintiffs take a quote from the late Supreme Court Justice Antonin Scalia in his concurring opinion from Adarand, which reads, “Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual.”
There is an interesting bit of constitutional philosophy here but also one that is problematic: Basically, it’s debatable whether there is a “focus upon the individual” in the Constitution.
The fact is that there are many references to group rights in our country’s founding document. Look no further than the First Amendment, with respect to the freedom to practice religion free of discrimination. As far as I know, a religion comprised of one individual does not exist.
The same could be said of the Second Amendment and militias. Again, this is a clear “focus,” not on individual, but rather on group rights. So, for the plaintiffs filing these injunctions to base their arguments on the idea that the U.S.’s magna carta is rooted solely on individual rights is incorrect.
The Florida injunction, which the Texas plaintiffs claim is the basis for their case, takes issue with the U.S. Department of Agriculture’s (USDA) designation of “socially disadvantaged farmers and ranchers” (SDFRs).
Here, the reasoning goes that direct evidence needs to be shown as to the experiences of racism. The plaintiffs argue that, “although the government argues that historical discrimination against SDFRs also included things such as higher interest rates, less advantageous loan terms, and delayed approvals, the record evidence does not appear to show that SDFRs with current loans suffered such discrimination.”
The problem is that evidence is not the issue; or rather, claims that evidence of racism must be provided are not required for the USDA to act with respect to historically marginalized farmers and ranchers.
It is worth noting that the SDFR designation was created as part of the 1990 Farm Bill, referring explicitly to producers who have been subjected to racial or ethnic prejudice because of their group identity. Included are not only African Americans, but also Latinos, Indigenous people, and Asian and Pacific Islanders.
With the designation, the USDA secretary of agriculture was granted the power to “carry out an outreach and technical assistance program to encourage and assist socially disadvantaged farmers and ranchers, and veteran farmers or ranchers, in owning and operating farms and ranches, and in participating equitably in the full range of agricultural programs offered by the Department.”
The main point here is on “participating equitably.” Specifically, the USDA has the power, in ways that it sees fit, to directly work with historically marginalized groups of people to counter systemic discrimination.
Debt forgiveness is one such initiative. After all, if people are in debt, then they are less likely and able to participate in other programs. For instance, Natural Resources and Conservation Service (NRCS) loans — which provide resources to farmers to practice farming in ways that improve soil, water and animal health — in part depend on having sound financials. So, the case coming out of Florida misunderstands the SDFR designation, which has been on the books for over 30 years.
But really, these injunctions have little to do with sound reasoning. Digging into the actual forces behind these cases, we find Donald Trump loyalists including former White House Chief of Staff Mark Meadows and former White House Senior Adviser Stephen Miller. They started the nonprofit that filed the injunction in the Texas case.
The Pacific Legal Foundation, which filed the injunction in Florida, is bankrolled by various conservative and libertarian groups such as the Sarah Scaife Foundation, the Bradley Foundation and the Donors Trust, which is tied to the Charles G. Koch Foundation.
Additionally, the Wisconsin Institute for Law and Liberty, which is behind the case filed in Wisconsin, draws most of its financial support from the Bradley Foundation. This foundation is behind funding several right-wing nonprofits around the country that are hostile to unions and skeptical of climate change.
In line with this strategy, leaders of the Wisconsin Institute — a recipient of Bradley foundation grants — have publicly stated that they have political objectives in mind with this injunction, intending to expand nationally in projects that target leftists and anti-racism.
The point is that these lawsuits against farmers of color have little to do with “equality before the law.” Bankrolled by conservatives with political ambitions, this race-baiting, white-identity politicking is all about maintaining a conservative base of voters heading into 2022 and beyond.
If the interests behind these injunctions really thought farming was tough, then they would invest time and energy in backing legislation that would actually help our country’s producers, like the Justice for Black Farmers Act; the Farm System Reform Act; Sen. Kirsten Gillibrand’s proposed program to restructure farm loans; and/or Sen. Amy Klobuchar’s bill that would strengthen antitrust enforcement.
Instead, what we have are nothing but right-wing ploys that do nothing but divide rural people and distract them from working on creating meaningful change in our communities.