Biden’s COVID Help: Is It a ‘Preference’ or a ‘Prejudice’?
President BidenJoe BidenBiden congratulates election of new Israeli president in deal to oust Netanyahu Trump DOJ seized phone records from New York Times reporters. “Blue’s Clues” Hosts Virtual Pride Parade With Help From Former “Drag Race” Competitor MORE has spoken often, with eloquence and passion, against the “Ugly poison” discrimination and racism in our government. So a decision from a Texas federal district court this week was particularly shocking: Judge Reed O’Connor has found that the Biden administration has engaged in systemic discrimination based on gender and race to implement COVID-19 relief for American restaurants. Cafe owner Philip Greer had claimed in a lawsuit against the Small Business Administration (SBA) that, although white, he needed the same bailout as minority restaurateurs under the new US bailout law.
The Greer’s Ranch Café is said to have lost more than $ 100,000 during the pandemic. Like many restaurateurs, Greer was delighted to hear about the Congress-approved Restaurant Restoration Fund. However, he soon learned that due to his race he could not be considered until other applicants were allowed to apply for funds. The White House and Democrat-controlled Congress have insisted that various groups be on the front lines, including women, minorities, and “socially and economically disadvantaged” people.
The government has confirmed that $ 2.7 billion has already been distributed through the fund and that there are nearly 150,000 applications pending from homeowners receiving preferential treatment. As a result, homeowners like Greer fear not only late payments, but the exhaustion of the $ 28.6 billion allocated under the program. The SBA confirms it already has requests for $ 65 billion in payments from the fund.
The Biden administration agreed that such classifications, especially based on race, must meet the highest constitutional burden of “strict scrutiny.” This means that such classifications are unconstitutional unless they are “narrowly tailored” to serve a “compelling government interest”. However, the Justice Department cited studies that found women and minorities historically have fewer lender resources and, before the pandemic, were often less likely to receive credit. This claim is largely supported. The legal question is whether the historical disparities are sufficient to justify a system of racial and gender preferences when all restaurants have been affected by the pandemic.
In 1989, the Supreme Court ruled that a minority set-aside program in Virginia was unconstitutional under the equal protection clause. The government cited historic hurdles for minority businesses, but the court hesitated. He noted that “the discrimination identified” in the past “would give … the government permission to create a patchwork of racial preferences based on statistical generalizations about any field of activity.” When using racial classifications, the divided court stressed that “mere legislative guarantees of good intention cannot suffice”.
Justice O’Connor relied on this precedent to state that applying the COVID-19 relief criteria was gross racial and gender discrimination. Her decision is subject to appeal, but it highlights a concern about a variety of state and federal COVID-19 programs that apply racial and gender lines. In Oregon, a state COVID-19 program for black businesses called the Oregon Cares Fund was challenged by a Mexican-American coffee owner and others under the equal protection clause. While legislative advisers and certain jurists raised concerns about constitutionality of the law, a the court of first instance rejected the challenge. Other such cases continue.
The courts have authorized minority contracts to remedy past injustices. Such programs are often created just for this purpose and, therefore, are treated as a remedial benefit for one targeted group, as opposed to a denial of exclusion for other groups. These cases can pose difficult questions about what is needed to apply a policy of racial discrimination and when a legislative remedy becomes a form of redress or discrimination.
The question is, when should you prioritize a common resource that everyone desperately needs? For example, the Biden administration and many states have given preferential treatment to minority communities in the allocation of early vaccines; states like Montana and Vermont put people of color first receiving shots. This meant that many other citizens had to wait, due to their race, for a vaccine in the midst of a deadly pandemic. Yet advocates have cited greater “reluctance” to vaccines in minority areas and other historic barriers to medicine as justification.
The court’s concern in the Greer case is that the Biden administration’s rationale would allow the use of racially discriminatory policies across government. This is a much more nuanced constitutional question than previous challenges. Rather than imposing a quota system or a policy of direct exclusion, Greer and others complain that the government can achieve the same result by prioritizing certain groups in receiving benefits.
The alternative is to maintain a clear line against the use of racial criteria in government programs. In a 2007 case, Chief Justice John Roberts made this position very succinct, stating that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. the race”.
Even if such categories pass the constitutional test, there is the issue of selecting groups for privileged treatment. In the case of the Oregon fund, Latino owners were excluded. Under the American Rescue Plan, anyone can claim preferential treatment if they claim to be part of a group that has “been subjected to racial or ethnic or cultural prejudice within the community. American company ”. This is the legislative version of the special graduation ceremony held at the University of Portland for “QTBIPOC (LGBTQIA and / or BIPOC)”. Once the inclusions were defined, the only major exclusion was for heterosexual white males.
The question is whether an American bailout can tell white homeowners to wait for a bailout that might not come. Of course, as with priority immunization programs, the preference given to minorities was designed to be short-lived and, therefore, difficult to challenge. However, the underlying problem will likely remain, as the Biden administration uses racial and gender lines in various government programs and resources. Indeed, the same logic has been used in other programs like the COVID-19 Special Relief Fund for Black Farmers.
The question is how to draw that line when limited funds may result in government assistance being reduced or denied based solely on skin color or gender. This fear of a zero-sum game for public aid will deepen our divisions and undermine the worthy unifying theme struck by President Biden in his campaign. Racial discrimination is indeed a “poison” in our body politic even when it is practiced for the best motives. The question is, how much can the body politic tolerate?
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find its updates online @JonathanTurley.