Fed Court Determines Biden’s Race-Based Restaurant COVID Bailout Is 'Racial Gerrymandering'

P. Gardner Goldsmith | May 30, 2021
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Here’s a mouthful: On May 27 a three-judge panel of the Sixth Circuit Federal Court of Appeals decided two-to-one to grant an injunctive halt on Joe Biden’s March-enacted Small Business Administration handout of $28.6 BILLION through the Restaurant Revitalization Fund, part of the so-called “American Rescue Plan.” And, in so doing, they gave America a pyrrhic victory based on a poorly based suit - and on the court’s own blindness to not only the enumerated powers of the Constitution, but the Fourteenth Amendment, as well.


The New American’s Veronika Kyrylenko unpacks the fundamentals about one Tennessee restaurateur’s win, and the appealing, but superficial, verbiage from some of the opinion.

The ruling involved the Restaurant Revitalization Fund, a $28.6 billion program in the COVID relief law President Biden signed in March. The law requires the Small Business Administration to give priority to restaurants owned by certain minorities and women, while bumping white males and other minorities to the back of the line.

The court has decided that showing favoritism to small restaurants at least ‘51 percent owned and controlled by women, veterans, or the ‘socially and economically disadvantaged’ is a violation of the 14th Constitutional Amendment equal-protection clause.

And they decided along these lines because the plaintiff’s legal representatives argued along those lines.

Adds Kyrylenko:

The ruling was in response to a lawsuit brought by the Wisconsin Institute for Law & Liberty on behalf of Antonio Vitolo, a white Tennessee restaurant owner, whose application for relief was not being processed until minority and female applications were fulfilled. After a trial judge denied his request for an injunction, he appealed to the Sixth Circuit Court of Appeals, which granted him an injunction in a 2-to-1 vote.

And Kyrylenko also provides the text of the Fourteenth Amendment, which is worth studying here because, evidently, neither the judges of the Sixth Circuit nor the attorneys arguing on behalf of Mr. Vitolo are very animated to focus on those words, or on what is or is not granted as a “power” for the feds by their vaunted Constitution.

As Kyrylenko notes, the Fourteenth Amendment reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, right away, we have a problem – and this isn’t a problem that excuses or allows Biden’s insane plan, either. The Fourteenth Amendment not only cites only the STATES, not the federal government, in that clause, but it also focuses on equal PROTECTION. As I have noted before, the disbursement of government handouts to people is not “protection” against other people. Americans have become so accustomed to government “giving” people things – from schooling, to welfare handouts and beyond – that many believe states have to hand out money and special favors to people “equally.” But handouts are not what was meant by the Fourteenth Amendment, because it is focused on what was understood by the Founders and many generations following theirs to be the so-called “role” of government: to protect people from other people.

Related: Chief Justice Roberts Takes the Wrong Side Again As SCOTUS Strikes Down Cali's Church Restrictions

If someone wanted to describe state lockdown edicts as attacks, and frame a suit against the state for damages, that’s a different matter, and -- given the long history of states claiming sovereign immunity -- the chances of winning such a VERY justified case would be slim. But that does not mean that the Fourteenth Amendment can be misread to make it: A. Apply to the feds, or B. Apply to welfare handouts, even for people who have been thumb-screwed by their state or city governments.

So, again, what we have here is a pyrrhic victory, wherein the majority ruled in favor of someone who was treated unfairly, yes, and wherein one judge even offered potent language about how the supposedly “racially inclusive” Biden Administration actually is engaging in “racial gerrymandering” of the funds.

Judge Amul Thapar’s opinion in Vitolo v. Guzman begins with a simple and straightforward description of the case and holding: ‘This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot.

Adds Kyrylenko, quoting Thaper:

’The stark realities of the Small Business Administration’s racial gerrymandering are inescapable,’ Judge Thapar states, slamming the ‘scattershot’ manner in which the Biden administration decided which races to prioritize.

But all of that is dark window dressing on a much larger issue, an issue bigger, even, than the fact that both the plaintiff’s lawyers and the majority on the Sixth Circuit completely, utterly misread the Fourteenth Amendment.

It’s that there is absolutely ZERO enumerated power granted to Biden, or Congress, or anyone in the federal leviathan to hand out cash to anyone “suffering” from the effects of lockdowns.

The power simply is not there. Some sophists try to point to the “general welfare clause” clause of the Constitution, but that was written to be read in conjunction with the enumerated powers only, and if anyone can be targeted by the feds to have his money taken in taxes or inflation-based borrowing to later be paid in taxes by future generations, then no one is safe, and the general welfare is, in fact, undercut by government predation.

As long as the state exists, the so-called “general welfare”, which means that each of us – not a politician -- gets to freely determine what is our “welfare,” will always be threatened.

Kyrylenko notes:

Recently, a federal judge in Texas issued a preliminary ruling finding that the Biden administration’s restaurant-relief fund discriminated against a white male restaurateur Philip Greer who brought a lawsuit, saying Greer is ‘experiencing race and sex discrimination at the hand of government officials.’


The Small Business Association isn’t the only government department opening the federal wallet wider for certain races. Biden’s American Rescue Plan provides billions of dollars of debt relief to “socially disadvantaged” farmers and ranchers, in the name of remedying ‘systemic racism.’ A group of white farmers has already sued the Farm Service Agency and secretary of agriculture over this, setting up another constitutional showdown that, based on Thursday’s ruling in Ohio, they will likely win.

Some might say that, as long as the Biden plan is shot down, what does it matter if the judges rule by misreading the Constitution, focusing on a misinterpretation of the Fourteenth Amendment, or overlooking the fact that the power to hand out the green isn’t there?

It matters a lot if one calls himself or herself a “constitutionalist” and bothers to vote to put people into the offices that document imposed on us.

If people are so willing to overlook the Constitution even as they play at controlling the machine it created, that’s a dangerous game.

Sadly, people in the U.S. have been playing it since the Constitution was slid in to replace the Articles of Confederation, and it’s been a downhill slide ever since, because few people bother to recognize the provisions and prohibitions written into it.

Related: 9th Circuit Fed Court UPHOLDS CA Suspension of Trials, Contrary to Bill of Rights