Justice Department lawyers did something highly unusual this week: They passed up the chance to appeal a judge’s order blocking a congressionally created program supported by President Joe Biden from going into effect.
The Biden administration faced a deadline Monday to appeal the first of three preliminary injunctions that federal judges have issued against provisions in a March coronavirus aid bill that created a $4 billion program aimed at forgiving the debts of minority farmers.
While the Justice Department has filed appeals within hours to defend the administration’s high-profile priorities in areas like immigration, this time federal government lawyers let the 60-day appeal period run — and then run out.
“It’s very unusual not to defend a statute that you support,” said Neal Devins, a professor of law and government at William & Mary Law School. “Maybe they fear a more consequential loss.”
A Justice Department spokesperson referred questions to the Agriculture Department about the lack of an appeal. A spokesperson there did not directly address the decision not to contest the preliminary injunction at an appeals court or the Supreme Court, but insisted the administration would keep defending the program at the trial court level as the litigation moves forward.
“The United States government will continue to fight these lawsuits in the district courts in the weeks and months ahead,” a USDA spokesperson told POLITICO, “because providing debt relief is an important component of USDA’s broader commitment to taking bold, historic action to rout out generations of systemic racism.”
Asked on Tuesday about the status of the program, White House press secretary Jen Psaki was vague about whether it has any prospect to escape its current legal quagmire, which stems from at least 12 lawsuits filed by white farmers working in coordination with conservative and libertarian groups.
“There is active litigation and, obviously, we had proposed plans to provide assistance to these farmers,” she told reporters. “Our commitment is to certainly help these farmers.”
African American farmers have been locked in legal battles with the federal government for decades over claims of pervasive discrimination in Agriculture Department programs. Some advocates for those farmers expressed disappointment that the Biden administration wasn’t moving to try to lift the injunctions now and get the debt relief and related benefits flowing.
“I was sure hoping they would appeal,” said John Boyd, president of the National Black Farmers Association.
“They are not laying out a clear definition of what Black farmers have experienced at USDA for decades, and are not responding to that in the various courts,” Boyd said. “You can’t stand here and not acknowledge discrimination that still exists today. It's a formula for failure. The history of discrimination is not being spelled out clearly enough by the Department of Justice and USDA.”
But in the weeks leading up to the appeal deadline, legal experts interviewed by POLITICO said the Biden administration faced long odds to rescue the debt relief program in court and could jeopardize other government programs that explicitly take account of race.
Some who favor efforts to provide relief to Black farmers said that the Justice Department’s approach was the right one and that the debt relief program needed to be recast to pass legal muster.
“It is probably a good idea not to appeal it,” said Lloyd Wright, former director of the USDA’s Civil Rights Office. He said new criteria for which farmers qualify for debt relief could get the funds flowing soon.
“Our coalition has offered a definition that removes race from the class of farmers that would receive debt relief and direct payments,” Wright added. “Our proposal has received broad support from the Black community.”
Legal experts said the Justice Department’s unusual decision had the hallmarks of a strategic move to try to avoid negative appeals court rulings and, potentially, a Supreme Court showdown that could set back other race-conscious programs, including affirmative action.
“It sounds like maybe DOJ would be concerned about having some higher court issue some decision saying something about affirmative action law in this context,” said Kevin Lynch, a University of Denver law professor. “That’s probably what’s driving this decision.”
While the Justice Department can continue to fight the cases in the trial courts, the minority farmer debt relief program is likely to remain suspended in the meantime. The halt is likely to stay in place while both sides in the cases seek records and testimony to buttress their arguments. That process is often contentious and drawn-out.
“That certainly could take longer. … Discovery can take anywhere from months to years, depending on the case,” Lynch said.
One legal analyst said Justice Department officials’ straddle on the issue — forgoing the appeal while pressing on with the District Court litigation — might be driven in part by a desire not to trigger a law that requires the Justice Department to formally notify Congress whenever the department chooses not to defend a statute.
“I think they’re trying to carve out this space,” Devins said. “It’s one thing to have Obama writing Congress not to defend the Defense of Marriage Act, but Biden writing Congress not to defend this statute doesn’t work quite as well.”
The Agriculture Department told POLITICO on Monday evening that the administration planned to continue fighting the lawsuits in the district courts in the weeks and months ahead.
But while the strategy of the Biden administration remains unclear, advocates remain skeptical on the success of any future litigation and on USDA’s commitments to equity.
Tracy Lloyd McCurty, executive director of the Black Belt Justice Center and co-organizer of the Black Farmers’ Appeal: Cancel Pigford Debt Campaign, said the repeated delays and legal snags were especially damaging for aging farmers in need of help.
“For two decades, our elder farmers have sought justice through the federal courts to no avail,” McCurty said.
She is calling on Congress and Agriculture Secretary Tom Vilsack to fix the embattled statute in the upcoming budget resolution “with an additional $15 billion in funding and a restorative-justice lens regarding the $30 billion Commodity Credit Corporation Fund.”
Debt relief is a priority item for the Senate Agriculture Committee in upcoming reconciliation negotiations, according to the summary released by Senate Democrats. But it is unclear whether that debt relief is specifically for farmers of color, small farmers or another group.
Boyd, of the National Black Farmers Association, and other advocates raised concern over the department’s failure to disburse another $1 billion, authorized by the same Covid-19 relief package, that is supposed to support socially disadvantaged farmers. At least 5 percent of those funds must go toward financial assistance for socially disadvantaged farmers, ranchers or forest landowners who are former farm loan borrowers and suffered related adverse actions, or past discrimination or bias, in USDA programs.
“Now we are running into the month of September and the secretary hasn’t released those funds,” Boyd said. “What is he waiting for here?”
USDA has not announced how any of the funding in the provision will be spent.
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