The Biden administration’s efforts to distribute federal benefits by race are already facing legal problems. Last week, two decisions ruled in favor of plaintiffs who sued the Small Business Administration for violating equal treatment under the law.
The problem is the SBA’s requirement that only restaurant relief requests from women and racial minorities be processed within the first 21 days, sending everyone to the back of the line. As the courts have recognized, the danger is that the SBA will run out of funds before these other claims can be considered.
America First Legal, which represents them, notes that they are eligible for relief but not for priority group status from the SBA. Federal Judge Reed O’Connor granted a preliminary injunction on the grounds that restaurateurs “face racial and gender discrimination from government officials.”
Meanwhile at Vitolo c. Guzman
the Sixth Circuit Court of Appeals granted a preliminary injunction against the SBA on behalf of white plaintiff Antonio Vitolo, half-owner of Jake’s Bar and Grill in Tennessee. The other half belongs to his wife, a Latina. In a 2-1 decision joined by Justice Alan Norris, Justice Amul Thapar cites Supreme Court precedents such as Adarand and Richmond c. Croson to eviscerate the discriminatory logic of the SBA.
The SBA justifies its bias as being necessary to address past societal discrimination. But Justice Thapar notes that the Supreme Court has ruled that such an appeal is only justified in limited circumstances. It must relate to a specific episode of past discrimination, the past discrimination must have been intentional and the government must have played a role in that discrimination. Justice Thapar writes that the SBA fails all three tests.
This legal analysis is an arrow at the heart of much of the Biden administration’s racial division agenda. This will, at a minimum, require Biden’s lawyers to explain their rationale for distributing racial loot with much more specificity. Even if they do, these and similar cases can end up in the Supreme Court.
The Wisconsin Institute for Law & Liberty, which has argued for Mr. Vitolo and Jake’s Bar and Grill, notes that Justice Thapar cites the famous finding of the 2007 pluralistic opinion of Chief Justice John Roberts in a case involving racial preferences in the Seattle school system: “The way to stop discrimination based on race is to stop discriminating on the basis of race. ”
The Supreme Court is currently examining the advisability of examining Students for fair admissions c. Harvard, which concerns the university’s use of race to discriminate against Asian Americans in admissions. The SBA cases are a reminder that even if the court dodges the Harvard case, the issue of racial preferences will not go away. It will come back in hundreds of equally controversial ways, for it is a fundamental tenet of the US Constitution.
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