DOJ forgoes appeal of order blocking money for minority farmers

“It is very unusual not to defend a law that you support,” said Neal Devins, professor of law and government at William & Mary Law School. “Perhaps they fear a more momentous loss.”

A Justice Department spokesman referred questions about the lack of an appeal to the Department of Agriculture. A spokesman there did not directly address the decision not to challenge the injunction in an appeals court or the Supreme Court, but insisted that the administration continue to defend the program in court as the proceedings progressed.

“The United States government will continue to fight these lawsuits in the district courts in the coming weeks and months,” a USDA spokesman told POLITICO, “because debt relief is an important part of the USDA’s broader commitment to bold, historic evacuation measures seize generations of systemic racism. ”

Asked on Tuesday about the status of the program, White House press secretary Jen Psaki was vague about whether there was any chance of escaping the current legal quagmire that resulted from at least 12 lawsuits from white farmers in collaboration with conservative and libertarian groups going back.

“There is active litigation and apparently we had proposed plans to assist these farmers,” she told reporters. “Our commitment is to help these farmers in any case.”

African American farmers have been involved in litigation with the federal government for decades over allegations of widespread discrimination in Department of Agriculture programs. Some supporters of these farmers expressed disappointment that the Biden government is not now trying to lift the injunctions and let the debt relief and associated benefits flow.

“I was hoping they’d appeal,” said John Boyd, president of the National Black Farmers Association.

“They don’t give a clear definition of what black farmers have been through in the USDA for decades, and they don’t respond to it in the various courts,” Boyd said. “You cannot stand here and not acknowledge the discrimination that still exists today. It’s a formula for failure. The history of discrimination is not set out clearly enough by the Department of Justice and the USDA. “

But in the weeks leading up to the appeal deadline, legal experts interviewed by POLITICO said the Biden government faced great opportunities to bail out the debt relief program in court and could jeopardize other government programs that explicitly consider race.

Some advocating efforts to provide relief to black farmers said the Justice Department’s approach was the right one and that the debt relief program needed to be rewritten to meet legal requirements.

“It’s probably a good idea not to appeal,” said Lloyd Wright, former director of the USDA’s Civil Rights Office. He said new criteria by which farmers qualify for debt relief could raise funds soon.

“Our coalition has proposed a definition that removes the breed from the class of farmers who would receive debt relief and direct payments,” Wright added. “Our proposal has received widespread support from the black community.”

Legal experts said the Justice Department’s unusual decision marked a strategic move to avoid negative appeals court rulings and possibly a Supreme Court showdown that could set back other racially conscious programs, including positive action.

“It sounds like the DOJ would be concerned about a higher court ruling on this issue that says something about the Affirmative Action Law,” said Kevin Lynch, a law professor at the University of Denver. “That is probably the reason for this decision.”

While the Justice Department can continue to fight the cases in court, the debt relief program for minority farmers is likely to remain suspended in the meantime. The stop is likely to remain in place while both sides seek records and testimony of the cases to back up their arguments. This process is often controversial and lengthy.

“That can certainly take longer. … The discovery can take months to years, depending on the case, ”said Lynch.

A legal analyst said the assaults by Justice Department officials on the matter – the waiver of appeal while the trial continued in the district court – could be in part driven by a desire not to trigger a law that obliges the Justice Department, Congress formally notify if the ministry decides not to defend a law.

“I think they’re trying to create this space,” said Devins. “It’s one thing that Obama writes Congress not to defend the Defense of Marriage Act, but Biden, who writes Congress not to defend this statute, doesn’t work quite so well.”

The Ministry of Agriculture told POLITICO on Monday evening that the administration planned to continue fighting the lawsuits in the district courts in the coming weeks and months.

But while the Biden administration’s strategy remains unclear, proponents remain skeptical of the success of future litigation and the USDA’s equity commitments.

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 issues are particularly detrimental to aging farmers in need of help.

“For two decades our senior farmers have sought justice in federal courts in vain,” McCurty said.

She calls on Congress and Agriculture Minister Tom Vilsack to amend the controversial statute in the upcoming budget dissolution “with an additional 15 billion.

Debt relief is a priority for the Senate Agriculture Committee in the upcoming reconciliation negotiations, according to the executive summary released by the Senate Democrats. However, it is unclear whether this debt relief applies specifically to colored farmers, smallholders, or some other group.

National Black Farmers Association’s Boyd and other advocates expressed concern about the department’s failure to pay out an additional $ 1 billion approved through the same Covid-19 aid package designed to help socially disadvantaged farmers. At least 5 percent of these funds must be used to financially support socially disadvantaged farmers, ranchers, or forest owners who are former farm loan borrowers and who have suffered related adverse actions or previous discrimination or bias in the USDA programs.

“Now the month of September is approaching and the secretary hasn’t released those funds,” Boyd said. “What is he waiting for here?”

The USDA has not disclosed how the funds will be used in the deployment.