Miller is facing outgoing state Rep. James White (R-Hillister) and economics professor Carey Counsil in the Republican primary for commissioner of the Texas Department of Agriculture (TDA). Attorney Susan Hays and businessman Ed Ireson are vying for the Democratic nomination.
Hays and White have both criticized Miller for his lawsuit against the U.S. Department of Agriculture (USDA), which claims the government violated the Constitution by administering certain aid only to nonwhite farmers. Hays defends the race-based aid, framing it as a fair repayment of debt. White agrees with Miller that the racial system violates the Constitution but called Miller’s lawsuit hypocritical.
Miller’s Lawsuit
Miller and a group of Texas farmers sued the USDA in April after Congress passed the “American Rescue Plan Act” (ARPA), a $1.9 trillion spending package. ARPA provides loan forgiveness of up to 120 percent for “socially disadvantaged” farmers and ranchers, a term that the USDA defined to include African-Americans, American Indians, Alaskan Natives, Asians, Hispanics, and Pacific Islanders.
The USDA removed the document that interpreted this definition of “socially disadvantaged” from the department website just days after Miller and the other plaintiffs cited it in their lawsuit. However, it still defends the definition in court documents while allowing that it may include other racial groups on a case-by-case basis.
Miller and the farmers claim that the USDA violated the law by distributing federal ARPA aid based on the race of recipients. Miller sued as a private farmer, not in his official capacity as agriculture commissioner.
The case is proceeding before a federal judge in Texas who preliminarily sided with Miller when he blocked the USDA from discriminating on account of race in administering the ARPA funds to farmers.
“The Government again fails to adequately explain how the exclusion of certain races and ethnicities from consideration for loan forgiveness benefits the already eligible socially disadvantaged farmers and ranchers or the public at large,” Judge Reed O’Connor wrote.
Federal judges in Florida and Wisconsin have also issued similar orders. While O’Connor’s order only blocked the USDA from discriminating based on race, the Florida injunction, issued the month before O’Connor’s, stopped the ARPA loan forgiveness program entirely.
Opposition From the Left
Hays called Miller’s lawsuit an obstacle to aid that nonwhite farmers deserve after past USDA discrimination against them.
“Here’s a program that would bring money to Texas farmers, and the agriculture commissioner’s suing to stop it. That’s just crazy. And what a lot of people don’t understand about the issue is the long history of litigation behind it that proved that the USDA systematically, and for decades, just excluded black farmers from financial programs that benefited white farmers. This is not a giveaway. It’s payment of a debt owed,” Hays said.
“Another bit of background folks don’t understand about agriculture is agriculture’s very dependent on government programs. And the direction USDA goes with its grants, loans, insurance drives what products get grown and also drives who survives financially.”
Hays brought up the legal background of Pigford v. Glickman, a class action discrimination suit between the USDA and black farmers that ended in settlements.
Ireson did not respond to a request for comment.
Miller called racial discrimination unconstitutional and said his lawsuit could help make ARPA’s farm aid fairer.
“I’m certainly not against farmers getting help, certainly not against black farmers getting help, but the problem is they gave out this pandemic relief for farmers, which they all needed… they based the eligibility, one of the factors is the color of your skin. You have to be a minority to be eligible for it, which is just blatantly unconstitutional,” Miller said.
“They’ve gone back to the drawing board and came up with a plan that’s just fair and equitable. And it’s based on economic qualifications… And that’s the way they should have done it the first time, not on the color of your skin.”
Opposition From the Right
White and Counsil both agreed with Miller that the loan forgiveness should not have been distributed based on race, but White called Miller’s lawsuit hypocritical in light of actions he’s taken as agriculture commissioner.
Specifically, White recalled how Miller asked the legislature for a 50 percent increase to the TDA budget and hiked fees for farmers and other licensees — raking in department funds that White says Miller used to hire corrupt aides.
“Obviously the commissioner would be of a class of ranchers and farmers, due to his race, that would be disadvantaged unconstitutionally by this Biden policy. And because he has received tens of thousands from the federal government in farm supports, he’s definitely in that class,” White said.
“But I think another question we have to ask is why has the commissioner, even before Biden’s horrible racialist policies, why has he disadvantaged Texas farmers with doubling and tripling of fees? Adding executive positions with high salaries funded by excess fee revenues?”
According to state law, the TDA must set fees in an amount that offsets the department’s costs. Miller sent out an official notice and analysis of the fee hikes in late 2015. The Texas State Auditor’s Office found two years later that the TDA had raised fees excessively and without a clear method for determining costs.
White specified that he opposes racial discrimination, touting his sponsorship of a bill meant to ban critical race theory inculcation in Texas classrooms and an opinion request he sent to the attorney general on the topic.
Counsil said he would like to see more nonwhite farmers but agreed that race should not be a condition for ARPA aid.
“I don’t think anything should be held against race, color, creed, or any of the protected classes. On the other hand, I do feel that we don’t have enough minorities and enough young people joining in agriculture. So, as pertains to this specific case, I find what Commissioner Miller has done with the USDA to prevent racial discrimination, reverse racial discrimination, or whatever you want to call that, should not be based upon race. Loan forgiveness should be based on your productivity, not based on any of the protected classes,” Counsil said.
In his defense, Miller referred to a recent report by the Texas Sunset Advisory Commission, the board responsible for determining whether or not programs and agencies should survive.
“I actually know what I’m doing. I’ve been running the agency for seven years. Just got a Sunset report; Sunset said we’re the best-run agency they had ever reviewed. So third-party verification that we’re doing a good job. I’ve managed a six-billion dollar agency. They haven’t,” Miller said of his opponents.
Sunset released a report in June that lauded the TDA’s management but said the department should guide its programs with clearer methodology.
“Sunset staff concluded TDA is well-managed, and found the department’s day-to-day responsibilities are largely removed from the politics and public attention focused on the commissioner, and recommends the department continue for 12 years,” the report reads.
“However, Sunset staff identified several opportunities to provide a firmer foundation for staff to successfully perform TDA’s multitude of functions regardless of any shifting focus at the top. Overall, TDA would benefit from using more objective data and performance analysis to inform the department’s various programs.”
The TDA’s responsibility of regulating the agriculture industry includes duties such as licensing hemp providers, certifying organic foods, regulating weights and measures, administering the school lunch program, promoting Texas agricultural commodities, and performing research.
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