Legal eagles that number among former President Donald Trump’s top White House lieutenants scored a major court victory in late May that has now proven to have rolled back racially controversial elements of the Biden administration’s “American Rescue Plan.”
America First Legal touted the effective victory over Biden’s race-based coronavirus aid program in a press release on Tuesday.
“Following litigation, the Small Business Administration halted its unconstitutional practice of applying racial preferences and exclusions when awarding relief under the Restaurant Revitalization Fund,” AFL said.
AFL points out that the New York Times published an article highlighting the issue this week. The Times’ language is racially charged but effectively concedes that the Biden administration’s social justice litmus test has been found by a court to be unconstitutional.
“Some restaurant owners sued [the SBA], claiming that the priority period was discriminatory. Several judges agreed, prompting the agency to alter its approach. In court filings on Friday, the agency said it had — in late May, in response to the legal actions — stopped payment on priority applications. The 2,965 people whose approvals were revoked will be paid only ‘once it completes processing all previously filed non-priority applications, and only then if the R.R.F. is not first exhausted,’ the agency said. Other applicants who expected to be part of the priority queue — tens of thousands of them, according to industry groups — are stalled, waiting to hear if they’ll be approved.”
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The COVID aid relief program was argued by the litigant earlier to be discriminatory on the grounds that it held that veterans, women, or “socially and economically disadvantaged” people would be given preference by the Small Business Administration.
The Sixth Circuit Court of Appeals ruled earlier in favor of the litigant Antonio Vitolo, who is the owner of Jake’s Bar and Grill in Harriman, Tennessee. The lawsuit was directed at U.S. Small Business Association Administrator Isabella Casillas Guzman. Vitolo’s lawsuit argued that white men are being ‘pushed to the back of the line’ for aid in the coronavirus relief program. A majority 2-1 decision found that Biden’s race-based litmus test for aid is not legal.
“This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants,” Judge Thapar ruled in the decision. “We hold that it cannot.”
“The Small Business Administration has injected explicit racial and ethnic preferences into the priority process,” the ruling continued. “Under a regulation that predates the pandemic, the agency presumes certain applicants are socially disadvantaged based solely on their race or ethnicity. Groups that presumptively qualify as socially disadvantaged—and thus get to jump to the front of the line for priority consideration—include ‘Black Americans,’ ‘Hispanic Americans,’ ‘Asian Pacific Americans,’ ‘Native Americans,’ and ‘Subcontinent Asian Americans.’ If you are in one of these groups, the Small Business Administration assumes you qualify as socially disadvantaged. Indeed, the only way not to qualify is if someone comes forward ‘with credible evidence to the contrary’.”
“There is an obvious solution to this of course: The agency can simply fund grants in the order they were received—without regard to priority status, and without regard to the processing head start that many applications received on the basis of race and sex,” the ruling noted.
Remarkably, Judge Thapar held that “the government offers little evidence of past intentional discrimination against the many groups to whom it grants preferences. Indeed, the schedule of racial preferences detailed in the government’s regulation—preferences for Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners—is not supported by any record evidence at all.”
Judge Thapar’s conclusion was particularly stinging.
“It has been twenty-five years since the Supreme Court struck down the race-conscious policies in Adarand. And it has been nearly twenty years since the Supreme Court struck down the racial preferences in Gratz. As today’s case shows once again, the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’”
The remedy in the case was as follows.
“The government shall fund the plaintiffs’ grant application, if approved, before all later-filed applications, without regard to processing time or the applicants’ race or sex,” the ruling held. “The government, however, may continue to give veteran-owned restaurants priority in accordance with the law. This preliminary injunction shall remain in place until this case is resolved on the merits and all appeals are exhausted.”
This case could potentially be appealed to the Supreme Court, but it is unclear if there is ample basis for it to be accepted onto the docket. It looks like the ruling has dealt a decisive blow to Biden’s relief package, and has resulted in what is effectively a Trump team legal victory to uphold equal protection and the rule of law.
OPINION: This article contains commentary which reflects the author's opinion.