- The Washington Times - Wednesday, March 29, 2023

A California task force is on track to recommend a reparations package worth as much as $800 billion to compensate Black residents, but whether such a payout would pass judicial muster is another question.

Legal experts warn that any plan to write checks to vast numbers of Black Californians for the economic harms of slavery would run into a host of hurdles, including the Constitution’s equal protection clause.

“As the case gets weaker, the demands become ever more grandiose,” Richard A. Epstein, New York University School of Law professor and Hoover Institution senior fellow, told The Washington Times.

Figures under discussion by economists working with the California panel include $246 billion to compensate those who lived in communities with aggressive policing and prosecution during the “war on drugs” from 1970 to 2000, according to an Associated Press analysis.

Another $569 billion would go toward compensating Black residents for housing discrimination resulting from redlining policies, a figure that assumes that all 2.5 million Californians who identify as Black qualify, which may not be the case.

Kamilah Moore, chair of the California task force, pushed back at Wednesday’s meeting on the estimates appearing in the media. “We have yet to determine any final amounts,” she said.

Economist Thomas Craemer said such speculation is “all premature.”

“What we are estimating are losses to African-Americans who are descendants of people enslaved in the United States,” Mr. Craemer told the panel. “We’re not necessarily suggesting those losses are equal to reparations. That is for the task force to determine.”

The task force voted last year to limit financial reparations to those who meet residency requirements and can trace their ancestry to enslaved or free Black people living in the U.S. in the 19th century.

On a per capita basis, however, that figure is small compared with the amounts under consideration in San Francisco. The city’s task force has floated the idea of lump-sum payments of $5 million per eligible resident, as well as a guaranteed annual income of $97,000 and forgiveness of personal debts.

Hoover Institution senior fellow Lee Ohanian estimated the cost at about $200 billion, or $600,000 per non-Black city resident. San Francisco’s fiscal 2022 budget was $13.1 billion. The final report is due on July 1.

The California task force’s recommendations are also due on July 1. Gov. Gavin Newsom, a Democrat, is already coming under pressure from advocates to enact the proposals via executive order instead of going through the legislative process.

The figures floated may be eye-popping, but Lisa Holder, a member of the California task force, said taxpayers need to view them in the historical context.

“It’s important that Californians understand that in order to match the scale of America’s greatest injustice, we must be prepared for remedies on a scale approaching the Great Society programs of Medicare and Medicaid,” she said in a March 21 op-ed in CalMatters.

Whatever happens, the next step is likely to be a trip to the courthouse on behalf of plaintiffs who could include non-Black residents required to foot the bill or Black residents who failed to qualify for the windfall.

Mr. Epstein, who has written extensively on reparations, said “the case for cash reparations cannot be made by merely pointing to these egregious wrongs” but rather it is “crucial to draw a straight line from slavery and Jim Crow to the current disadvantages suffered by Black Americans.”

So far, he said, reparations proposals have fallen short, leaving them vulnerable to litigation.

“It is an explicit racial classification that will run into challenges under equal protection,” Mr. Epstein said in an email. “Its numbers are so large that the implicit claim is that all recipients would have done far better than any White citizen has ever done in the marketplace, so proportionality issues will be raised.”

In addition, the California task force has no White members and one Asian member, Donald K. Tamaki, who was involved in the movement to provide redress for the internment of Japanese Americans during World War II. All other members of the panel are Black.

“The entire body will be attacked for bias because it was loaded only with individuals who stood to gain from the proposal, with no representation of those who are being asked for attributable enormous amounts,” Mr. Epstein said.

Supporters of slavery-related reparations point to the Japanese American reparations effort, which resulted in a 1988 federal law that gave a formal apology and $20,000 to each survivor of the internment camps. Germany paid reparations to Holocaust survivors.

“Globally, we see reparations paid to direct victims and descendants in the quantity of billions of dollars,” Ms. Holder said. “The task force is mandated to align with these international conventions and, moreover, we are guided by the moral imperative that justice is priceless.”

Nobody disputes the immorality of slavery and its repugnant legacy, but in the case of Japanese Americans, the reparations were paid to people who were directly affected. There are no survivors of U.S. slavery, which ended with the Union’s victory in the Civil War in 1865.

Civil rights lawyer Hans Bader cited a 1989 Supreme Court case that found that victim-specific relief, such as the case with Japanese American reparations, is not a racial preference.

“Victim-specific relief is not considered a racial preference, as even Justice [Antonin] Scalia, who opposed all racial preferences, explained,” Mr. Bader said. “But payments to the descendants of victims is not victim-specific relief, and is thus a racial preference.”

The San Francisco Board of Supervisors has expressed support for the reparations task force’s proposals despite skepticism on the right.

“Do you know what it would take to prove $5 million in damages?” Mr. Epstein asked. “If you’re trying to say you’d be at the same level as White people if you didn’t have discrimination? How many White people have accumulated earnings of $5 million?”

He said “the numbers just keep getting larger and larger, and they’re always done by bodies which have representatives only on one side.”

Other jurisdictions are warming up to the idea of direct cash transfers. In Illinois, the Evanston City Council voted this week to expand its first-in-the-nation reparations program for housing assistance to include payments of $25,000 per eligible Black resident.

The California panel’s June interim report also cites the “wealth gap.” It says White families owned 10 times more assets than Black families and attributed the discrepancy to the legacy of slavery, “systemic discrimination” and “white supremacy.”

“Government laws and policies perpetuating badges of slavery have helped white Americans accumulate wealth, while erecting barriers that have prevented African Americans from doing the same,” the report said. “These harms compounded over generations, resulting in an enormous gap in wealth between white and African Americans today in the nation and in California.”

Such sweeping condemnations have helped fuel popular support for the reparations movement, but defending them in court would be more difficult.

“It can’t be assumed that descendants suffered as much from discrimination against their ancestors as the ancestors did,” Mr. Bader said in an email. “In some cases, their ancestors compensated for discrimination by working harder, leaving their descendants with no lost wealth at all.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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