Pendley: American Rescue Plan Is Unconstitutional! Certainly, The Part Dividing Americans By Race

Columnist Perry Pendley writes: "Todays case shows once again, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Annaliese Wiederspahn

June 04, 20215 min read

Pendley arguing
(Cowboy State Daily Staff)

By William Perry Pendley, columnist
Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management in the Trump administration

Antonio Vitolo is the owner, with his wife, of Jake’s Bar and Grill in Harriman, Tennessee, a town of fewer than 7,000 in Roane County, west of Knoxville.  Like all restaurants, but especially small ones, Jake’s suffered mightily following government-imposed lockdowns in response to the COVID-19 Pandemic. 

Therefore, when the American Rescue Plan Act passed with promised relief— the Restaurant Revitalization Fund—Mr. Vitolo applied to the Small Business Administration, which runs the program, on the first day.  After all, time was of the essence.  Awards are made first come, first served, and the funds will soon run out.  Mr. Vitolo was not eligible, however; he is white!

Represented pro bono by the Wisconsin Institute for Law & Liberty, Mr. Vitolo sued in federal district court in Tennessee, which ruled against him, but he sought expedited action before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.  Last week, by 2-1, the panel ruled in his favor and held the race-based provisions Congress included in the statute unconstitutional.

This is welcomed news for all Americans, a setback for Congress, which included racial preferences in legislation for decades, and an advisory that President Biden should end his shameful, hateful, and disturbing racially divisive rhetoric. 

For me, it was vindication.  The panel frequently cited my 1995 victory at the Supreme Court of the United States.  At that time, legal commentators predicted the ruling doomed government race-based decision making, which did not occur, but now, once this case or one like it reaches the Supreme Court, that will happen.

Judge Amul Thapar joined by Judge Alan Norris dealt first with jurisdictional issues, specifically the federal government’s attempts to throw Mr. Vitolo’s case out of court.  Governor lawyers argued he might not win a grant; moreover, his case was moot.  The panel rejected both arguments handily.

Judge Thapar explored the federal government’s decades-old presumption that certain racial and ethnic groups are entitled to preferences over fellow Americans. 

He called that “racial gerrymandering,” for example, “individuals who trace their ancestry to Pakistan and India qualify for special treatment.  But those from Afghanistan, Iran, and Iraq do not.  Those from China, Japan, and Hong Kong all qualify.  But those from Tunisia, Libya, and Morocco do not.” 

Judge Thapar: Imagine two childhood friends—one Indian, one Afghan.  Both own restaurants, and both have suffered devastating losses during the pandemic.  If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend.  Why?  Because of his ethnic heritage.

Quoting Chief Justice Roberts, he concludes, “It is indeed ‘a sordid business’ to divide ‘us up by race.’”

It not just sordid; it is unconstitutional.  Federal government “policies that classify people by race” have been “presumptively invalid,” wrote Judge Thapar, since the Supreme Court ruled in Adarand Constructors, Inc. v. Peña in 1995 and subject to “strict (usually fatal) scrutiny.” 

To survive scrutiny, the federal government must demonstrate that it seeks to achieve a “compelling government interest” and that it “narrowly tailored” relief to advance that interest.  Asked Judge Thapar, does the federal government have a compelling interest in “presumptively sending men from non-favored racial groups (including whites, some Asians, and most Middle Easterners) to the back of the line[?]  We hold that it does not.”

As for the federal government’s argument that its compelling interest is “remedying past society discrimination against minority business owners,” the panel addressed three requirements: 1) specific episodes of past discrimination; 2) evidence of intentional discrimination; and 3) government involvement in that discrimination. 

The government met none.  Societal discrimination is not proof of discrimination; there was no evidence of past intentional discrimination against the groups granted preferences; and—other than vague congressional testimony—there was no evidence of government involvement in racial discrimination.

Next, the panel addressed narrow tailoring, which requires the federal government to demonstrate “serious, good faith consideration of workable race-neutral alternatives.”  It concluded, in response to the government’s arguments, that “race-neutral alternatives exist,” which Congress failed to adopt; moreover, its use of “racial preferences is both overbroad and underinclusive.  This is also fatal to the policy.”

Further, the panel struck down the statute’s preference for “women-owned restaurants” after federal lawyers failed to provide the “exceedingly persuasive justification” required by the Constitution.

The panel concluded.  “It has been twenty-five years since the Supreme Court struck down the race-conscious policies in Adarand….  As today’s case shows once again, the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race’.”  Amen!

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Annaliese Wiederspahn

State Political Reporter