Unconstitutional | Michael Patrick Leahy

Southeastern Legal Foundation Attorney Cece O’Leary Gives Updates as Judge Rules American Rescue Act Unconstitutional

Live from Music Row Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed attorney with the Southeastern Legal Foundation, Cece O’Leary, who gave updates on the pending USDA lawsuit as judge rules American Rescue Act unconstitutional.

Leahy: We are joined on our Newsmaker Line by Attorney O’Leary with the Southeastern Legal Foundation. Good morning, Cece.

O’Leary: Good morning. Thanks for having me.

Leahy: We’re delighted to have you on here. So you have an update for us about this USDA lawsuit. Tell us about this.

O’Leary: Yeah, absolutely. So under the leadership of President Biden, the federal government has essentially been hiding behind COVID relief to discriminate against individuals on the basis of race.

And they’re doing this in all sorts of ways. In this particular instance, under the American Rescue Plan Act, the government has been forgiving the loans of non-White farmers.

But it’s denying that same loan forgiveness to White farmers, and this is discriminatory. It’s unconstitutional. And so along with Mountain States Legal Foundation, we filed a lawsuit on behalf of a farmer here in Tennessee to put a stop to this.

And fortunately, just last week, the court issued an opinion where they saw through the government scheme. The court agreed with us and held that this program is not constitutional. It does not stand for equality. And it held that the government must immediately stop this program.

Leahy: Now, help me with this. Is this a recently past statute that is involved in this? Is this the American Plan Act? ARPA?

O’Leary: That’s exactly right. It’s even bigger than a statute honestly. This is part of a concerted effort by the government since pretty much the day that President Biden took office.

Back in January, Biden issued a directive, an executive order all about equity, where he wanted the government to push for more equity.

As a result of that, in March, the government passed the American Rescue Plan Act, which is meant to be a COVID relief bill. But under the Act, the government is really just hiding behind COVID to push this equity agenda.

They are treating individuals differently. They are granting COVID relief and loan forgiveness to minority farmers, but they are not granting that same relief to White farmers.

If you are a White farmer who has been directly impacted by COVID, and let’s say that you suffered from the disease or somebody who works on your farm suffered from the disease, and you had to shut down the farm for a couple of months, that can have a severe impact economically on you.

And I would think you’d be entitled to that relief. The government doesn’t care. The government is not going to give you that relief solely because of the color of your skin.

And we are seeing this in a variety of areas across the spectrum coming from the Biden administration.

Leahy: Cece, if you could elaborate a little bit, there’s a statute, which is the American Rescue Plan Act. When did that pass? In March or so this year?

O’Leary: Yes. That was in March.

Leahy: It passed in March. So there’s a statute, and then there’s a regulation, apparently. I don’t know if it’s a temporary regulation or permanent regulation implemented by the U.S. Department of Agriculture about how to implement this law.

Does the language of the statute — is that racially discriminatory against non-Whites?

O’Leary: Yes. So specifically, what we are suing on is Section 1005 of the statute. This statute essentially gives funding to what they call ‘socially disadvantaged farmers and ranchers.’

Now, with legislation, often a definition for something is not easy to locate. You have to jump through a couple of hoops to find the definition.

As you go back through the legislation, eventually, what you learn is that when they say socially disadvantaged, they mean Black, Hispanic, Asian-Pacific Hawaiian, and all these minority races that are not White. But what it comes down to is the color of your skin, your race.

So, to answer your question, yes. This is both in the legislation and the regulation that the federal agency is promulgating, and it ultimately comes down to the color of one’s skin.

Leahy: So the statute itself is unconstitutional.

O’Leary: Correct.

Leahy: I’m looking at how it passed. It passed the Senate 50 to 49 and it passed the House to 220 to 211. It looks like it was entirely partisan here.

O’Leary: That’s correct.

Leahy: Was it like a thousand pages passed in one day with some staffers throwing this language in?

O’Leary: You probably have a better idea of how long it was than I do, (Leahy chuckles) but I wouldn’t be surprised if it was that long.

Leahy: And this is how they do it.

O’Leary: Right. Exactly.

Leahy: What is the legal argument in favor of discrimination in favor of non-Whites and against Whites? What’s the legal argument for that presented in this statute?

O’Leary: The government kind of has two theories going, two reasons going for this statute. Number one, they’re saying that COVID has impacted minorities more than any other group. And number two, with relation to this particular section about farmers, they are saying that there is a history of discrimination within the U.S Department of Agriculture.

We do not deny that there is a sordid history of discrimination in the agricultural field. For years, minority farmers were denied loans, or rates were jacked up against minority farmers.

This is absolutely true that there has been a history of discrimination. However, the government has not offered any evidence of discrimination against farmers within at least the past 20 years.

So it seems that discrimination has essentially been rooted out within the USDA, and it kind of hints that Congress is really hiding behind COVID to push this equity agenda.

The second issue with their reasoning is that COVID does not discriminate by race. The pandemic affects people of all colors. And when you are passing a law where you are going to have race be a factor, race has to be an absolute last resort.

You cannot rely on race to root out discrimination unless it is the absolute narrowest means to achieve your goal. As I mentioned here, if you are a White farmer who has been directly impacted by COVID, the government doesn’t care.

You won’t get the COVID relief that you might be entitled to. Similarly, if you are a non-White farmer, you might not have suffered a day because of COVID.

You might have been able to operate your farm completely normally without any economic harm. Again, the government doesn’t care. Because you are not White, you are still entitled to loan relief.

This really comes down to the color of one’s skin and it is well-settled law that the government cannot just pick and choose which race to award relief to or to grant certain benefits to.

We need to return to this principle of equality, right? Where all races are equal, where we don’t see the color of one’s skin, instead of what the government is trying to promote, which is equity.

Leahy: I’m going to play Devil’s advocate here, right? Doesn’t the federal government advocate have a duty to correct the injustices from about two centuries of slavery that ended in 1865 and about a century of discrimination that ended, depending on when you look at it, in 1970 probably with the federal statutes?

If you’re saying there was some potential discrimination against non-Whites in the administration of the Department of Agriculture programs ending, as you say in 1990, doesn’t the government have a duty to address those past sins?

O’Leary: The government has a duty to protect the Constitution, first and foremost. And it is a long-standing principle in our nation that equality is enshrined in our founding.

It’s enshrined in our Constitution. It is what we have fought and died for. And equality is treating individuals the same regardless of the color of their skin.

Leahy: Will this case go to the Supreme Court, and how will the Supreme Court decide on it?

O’Leary: That’s a great question. We are hoping that the case doesn’t need to go to the Supreme Court. It would be great if the government would stop discriminating on the basis of race, but we’ll see if the government will actually stop.

If it does get to the Supreme Court, we are ready to fight. It’s disappointing that our elected government officials do not value equality as they should.

But the good news is that our framers had such foresight when they were drafting our Constitution that they put checks and balances and separation of powers into play, and so we will continue to put these matters before the courts.

The courts take this issue very seriously, and we expect that if it does get to the Supreme Court, the Supreme Court will strike this down as unconstitutional.

Leahy: Cece O’Leary with the Southeastern Legal Foundation, thanks for joining us. Come back, if you would, please.

O’Leary: Thank you. I appreciate it.

Listen to the full second hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Cece O’Leary” by Cece O’Leary.

Americans for Prosperity-Tennessee Grassroots Director Grant Henry Discusses Recent Nashville Taxpayer Protection Act Ruling

Live from Music Row Tuesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Grant Henry of Americans for Prosperity-Tennessee in the studio to weigh in on the recent decision made the court citing the unconstitutionality of the Nashville Taxpayer Protection Act, therefore, preventing it from proceeding to a vote by Davidson County citizens.

Leahy: We are joined now in studio by our good friend Grant Henry. He’s the grassroots director for Americans for Prosperity, Tennessee. Good morning, Grant.

Henry: Good morning, Sir. Good company in this room right now.

Leahy: Yeah, we’re having a good time. Also in studio with us, the mayor of the turbocharged bastion of freedom, Maury County, Andy Ogles. Good morning again, Andy.

Ogles: Good morning.

Leahy: Grant, what on earth happened with the judge’s decision to basically declare that the Nashville Taxpayer Protection Act, which received all of the signatures necessary to get on the ballot for the second time, why did the judge throw that out?

Why did the judge, in my view, deprive Davidson County residents who are supporting a common-sense conservative referendum get thrown out when a left-wing referendum that actually had fewer signatures than this that set up the left we hate the police, Community Oversight Board sail through without any judicial opposition?

Henry: First and foremost, this ruling silences the Nashville voters and taxpayers’ voices who continue to be saddled with harmful tax increases. Nashvillians are tired of Mayor Cooper and Metro’s spending addiction to put the city in jeopardy again and yet one more time.

And to answer your question directly, this ruling made by Chancellor Russell Perkins, I’m reading directly from News Channel Five here stated, “given the six proposed amendments are not severable, none of 4 Good Government’s proposed amendments to the Metropolitan Government’s Charter permitted to be considered for a referendum and Election Day of July 27.”

Now, you’ll know this clearly, but that idea means if one of them fails, they all fail. And in my personal opinion here, let me draw a hard line of delineation between myself and Americans for Prosperity.

In my personal opinion here, it seems quite clear Chancellor Perkins was desperately searching for justification in his analysis pertaining to this allegion severability situation.

Leahy: We’ve had Jim Roberts here in studio who said very specifically that these six proposals were, in fact, severable. In other words, you could reject one but still vote on the other.

Apparently, the judge disagreed with that. I’m not a lawyer. I don’t play one on the radio. You however are a graduate of a law school. What’s your view on the decision?

Henry: The decision felt like an overtly partisan interpretation of both previous case law and the petition language itself. Again, that’s as far as I’m concerned. But here’s what I think ended up happening is for several of those amendments, Chancellor Perkins realized and ruled that he didn’t have jurisdiction.

Now, what this meant was that he was then forced to say that at least if one of them doesn’t work, then all of them are going to have to fail, because otherwise, the other result would have been, hey, amendment one, we have to keep that off.

But the ones where I don’t have jurisdiction say amendment two, three, four, and five, those have to stay on. There was no way he was gonna be able to get away with that. And I put big air quotes here.

Leahy: By the way, our listeners. Yes, he did. I can verify he did put those air quotes on ‘to get away with.’

Henry: I personally believe the course decision only perpetuates the fiscal mismanage we’ve seen in places and an even greater need on the state legislature. Let’s shift here for just a second and greater need in the state legislature to strengthen our truth and taxation law that will insert some fiscal responsibility into this city’s finances and allow voters to reject corporate welfare and massive tax hikes.

We at Americans for Prosperity are going to continue to advocate for taxpayers throughout the state to work to bring structural reform that reigns in not just Nashville’s outrageous spending, but other cities across the state, too, with a super high debt ratio. But look, I will say there is some sliver of hope left. I’m sure Jim Roberts has talked about that.

Leahy: I’m glad we had at least a sliver of hope. What, pray tell, is that sliver lining?

Henry: The Election Commission decided last Friday that they will appeal this decision. I’ve been told there will be an expedited appeal going through here now in legalese I suppose that still means we’re going to have to wait about a month for any real ruling to come down.

But in the meantime, the Election Commission, I suppose in some way to show how confident they are about this decision going their way has actually set a provisional date out towards the end of September.

So Americans for Prosperity, we’re going to sit back, wait for a minute, see how this thing rolls out. But again, we are going to continually fight strongly for things like truth and taxation for when this comes up again on the ballot, possibly in September.

And we’re going to hit the ground running. But I’m saying I’ll pay attention to the state legislature next year. The truth and taxation certification process is going to be an incredible thing.

Leahy: It strikes me again not being an attorney. A couple of things strike me about this. Jim Roberts told us they were clearly severable. They wrote it so that it would be severable. This was an issue the previous time that they lost that the judge brought up.

I will say, however, to me it seemed like it was a mistake to put six elements on the ballot. I think there should have been just two, one being the rollback of the property taxes from the 34 percent increase and then the second that would have prohibited the City Council from introducing a smoke screen alternative that would confuse voters.

That would have been my view on the best way to go. But I guess, reading the opinion from what I saw, I think that the judge ruled that the rollback of the 34 percent property tax increase apparently was not constitutional. Is that right?

Henry: Right. And that’s why he kept citing the case called the City of Memphis versus…I don’t remember. But the idea behind that is as long as something is deemed facially and constitutional, that is on its face, you can tell it’s unconstitutional.

The judge, the Chancellor here can get in before the vote happens to deem something unconstitutional which is absurd.

Leahy: I have a vague recollection of that case City of Memphis. I think it is a misinterpretation of that ruling. And there’s a legal term where you take something that is sort of an aside comment, and you say that that was the ruling.

Henry: Dicta or something.

Leahy: Yeah, exactly. It’s dicta. In other words, if it’s a side comment and not the court of the ruling. And I think I’ll have to get our legal experts on that. I think that the City of Memphis precedent would fit in that category. Well, the appeals court will take it up I think at some point.

Listen to the full third hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.