Judges are proving less partisan and ideologically driven than the increasingly totalitarian Left had hoped.
1. In Vitolo v. Guzman, the 6th U.S. Circuit Court of Appeals at Cincinnati ruled last week that the federal government violates the equal protection clause when it considers race or sex in in allocating Wuhan virus relief funds. Following the same track as the earlier case discussed here, the Court agreed that the U.S. Small Business Administration violated the Constitution by giving preference to minority- and women-owned restaurants.
Antonio Vitolo and his wife own a restaurant called Jake’s Bar and Grill. Vitolo is white, his wife is Hispanic, and they each own 50% of the restaurant. Of course, Jake could have gamed the easily manipuated SBA system by just handing his wife the extra 1%. The government requires small businesses to be at least 51% owned by women, veterans or “socially and economically disadvantaged” people to jump to the head of the line, because someone is presumed to be socially disadvantaged if they are a member of a designated racial or ethnic group. A person is considered economically disadvantaged if they are socially disadvantaged, and they face diminished capital and credit opportunities. In such a system, whether the business owner being given preference has actually been disadvantaged doesn’t matter. He or she is presumed to be disadvantaged. This nicely follows the circular logic of Critical Race Theory.
The group preferences are taken into consideration during the first 21 days in which the Small Business Administration awards the pandemic grants to restaurants. After priority applications submitted during that period are processed, the Small Business Administration processes grant requests in the order that they were received. That is, white men come last.
The 6th Circuit majority said Vitolo and his wife are entitled to an injunction forcing the government to grant their application, if approved, before all later-filed applications, and that their color and gender should be irrelevant. The government did not demonstrate a “compelling interest” justifying preferences based on race or sex.
2. In the cases of Garland v. Dai and Garland v. Alcaraz-Enriquez, the U.S. Supreme Court emphatically rejected the ever-progressive and frequently reversed Ninth Circuit’s absurd holding that a potentially illegal immigrant’s testimony alleging legitimate refugee status should be presumed to be credible even when a lower court did not specifically address that person’s credibility. Justice Neil Gorsuch, in his majority opinion, chided the U.S. Court of Appeals for the Ninth Circuit for its practice of taking immigrants at their word when they are not entitled to such deference.
To be granted asylum, immigrants must file a petition claiming their “life or freedom would be threatened” on account of “the alien’s race, religion, nationality, membership in particular social group, or political opinion.” When such a petition satisfies the fact-finding immigration court, then U.S. law mandates that the person cannot be removed from American soil. When the immigration judge specifically deems an immigrant’s testimony credible, both the Board of Immigration Appeals (BIA) and federal circuit courts will generally defer to that finding. The problem is that many alleged refugees have no documentation, so these bodies are depending on their word. Bias, therefore, is rife. Judges in sympathy with the progressive objective of open borders will find almost any story credible. The Ninth Circuit has had a longstanding practice of assuming immigrants are being truthful, even when the immigration judge has made no such finding.
Gorsuch wrote that the Ninth Circuit’s approach has “no proper place in a reviewing court’s analysis…Nothing in [immigration law] contemplates anything like the embellishment the Ninth Circuit has adopted….It is long since settled that a reviewing court is ‘generally not free to impose’ additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel.”
The SCOTUS opinion was unanimous: 9-0.