A group of Black farmers is seeking to jump into the Texas federal court battle that has stalled a $5 billion debt relief program for farmers of color.
The motion to intervene filed on Tuesday by the Federation of Southern Cooperatives/Land Assistance Fund includes declarations from six farmers alleging discrimination from the Agriculture Department and Farm Service Agency loan programs.
The farmers argue that debt relief is key to their businesses’ survival and that Agriculture Secretary Tom Vilsack and his Justice Department attorneys can’t be counted on to defend the debt relief program as vigorously as the Black farmers federation will.
“Its members realize the benefits from the program and that the constitutionality of racial justice programs be upheld,” wrote the group’s attorneys with the Lawyers' Committee for Civil Rights Under Law. “Although the Federation’s members will be most impacted by the outcome of this case, the record is currently devoid of any stories or narratives of Black farmers or other farmers of color. … It is certain that the Federation will present the case of past governmental discrimination more comprehensively and compellingly than the government has to date.”
Background: The lawsuit at hand, Miller v. Vilsack, was first filed by Texas Agriculture Commissioner Sid Miller, who argued that the program unconstitutionally discriminates against white farmers. The suit, backed by an organization led by former Trump adviser Stephen Miller, came about a month after the debt relief was passed by Congress in the March Covid-19 relief package.
In July, Federal District Judge Reed O’Connor issued a preliminary injunction concluding that the program is probably unconstitutional and ordering USDA to not issue any payments until litigation is complete.
The Texas case is one of a slew of legal challenges to the program. A federal District Court in Florida was the first to issue a preliminary injunction, and a judge in Wisconsin issued a temporary restraining order.
The Justice Department, defending the program on behalf of USDA, opted not to appeal the first preliminary injunction issued or similar orders in other cases.
In the weeks leading up to the first 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. That means one of the only viable options to provide debt relief is for Congress to amend the law.
Meanwhile in Congress: Democrats in Congress, however, are looking to amend the previous debt relief program passed in March and replace it with an $11 billion program that would provide debt relief to “economically distressed” and “at-risk” farmers for the same loans as the previous package. However, this also includes white farmers.
A committee document and Congressional Budget Office score leaked by the House Agriculture Republican members show a draft of the reconciliation text that amends the Covid relief package to provide $6 billion through reconciliation in addition to the $5 billion the CBO estimates the last debt relief would have cost.
In consultation with House and Senate aides, the legislation in fact adds more on top of the initial March funding total — bringing the new total in debt relief and equity spending between the two packages to $11 billion. Aides warn, however, that the budget score and text are not final.
But advocates for Black farmers are already wary of how a new program could be administered since the new draft text opens up the door for white farmer debt relief and doesn’t explicitly say funds will go to “socially disadvantaged farmers.”
“We are encouraged by Congress’s current attempt at debt relief through reconciliation,” said Dãnia Davy, director of land retention and advocacy at the Federation of Southern Cooperatives/Land Assistance Fund. “Unfortunately, we do not believe that this attempt goes far enough to address the concerns regarding the implementation of Section 1005 of the American Rescue Plan — including both direct and guaranteed FSA loans — that form the basis of our approach in the courts.”
What’s next: If O’Connor grants the motion, the Black farmers group can take part in discovery in the suit, demanding documents and questioning witnesses in depositions, and can join in any future appeal. However, the version of the program passed in March will remain on hold and could essentially be supplanted by any debt relief measure Congress passes in the expected reconciliation bill.