The Harris "I'll follow the law" mantra is a dodge. And a lie.

During her interview with Bret Baier, Kamala Harris evaded tough questions about whether she still takes certain radical positions she advocated during her last presidential campaign. She evaded them by saying, “I will follow the law.”

Does Harris still favor using taxpayer dollars for “gender-affirming” surgeries for prison inmates? “I will follow the law.” Does she still favor granting illegal immigrants benefits like free health care? “I’m very clear that I will follow the law.” Does she still favor decriminalizing crossing the border illegally? “I am very clear that I will follow the law.”

I doubt this dodge impressed the voters whom Harris, with her campaign slumping, hoped to win over. Most voters expect candidates for any important office to have views on important issues. This is especially true of candidates for the presidency.

It’s not as if the president is a passive observer of the national scene. Presidents can work to change laws they don’t like and to create new laws consistent with their ideological preferences.

In fact, Americans expect presidents to do these things. It’s called leadership.

Even so, it would be nice if Harris, in the oval office, actually would follow the law.

Unfortunately, in her recent effort to win over black male voters, Harris promises to implement a program that does not follow the law. I’m referring to the “forgivable loans” of up to $20,000 she says she’ll grant to black entrepreneurs.

There’s no question that granting a benefit exclusively to members of a particular racial group violates the U.S. Constitution. In the case of loans, such grants also violates the Equal Credit Opportunity Act.

The Harris campaign hopes to evade these obvious barriers by making loans available to some non-blacks. It states that the loans will go to “Black entrepreneurs and others who have historically faced barriers to starting a new business or growing an existing business.” (Emphasis added)

Thus, all black entrepreneurs will be eligible for loans, along with members of other groups that, in Harris’ view, have faced barriers to starting a new business or building on an existing one. However, whites will be excluded because, as a group, they have not “historically” faced such barriers. (I wonder whether this exclusion of whites will cause Harris to lose some votes in swing states like Pennsylvania.)

Adding members of certain other minority groups to those eligible for loans does not cure the constitutional problem. As this article points out, federal courts in Florida and Texas have blocked relief programs that granted benefits solely to minority farmers. In the Texas case, female farmers also got benefits. The fact that these programs weren’t limited to black farmers did not save them.

Furthermore, although Team Harris may not know it, at least one federal program quite similar to the candidate’s has been struck down as unconstitutional. The Small Business Administration (SBA) sets aside certain federal government contracts for companies owned by “socially and economically disadvantaged” individuals.  These individuals are defined as those who have “been subjected to racial or ethnic prejudice or cultural bias” and have had “diminished capital and credit opportunities as compared to others in the same business area.” 

In implementing this program, the SBA published a list of preferred racial and ethnic groups — a list that extended beyond blacks. Members of these groups are presumed to be socially disadvantaged individuals, regardless of whether they have ever actually faced racial prejudice or cultural bias. 

The SBA’s presumptions allow companies to obtain Section 8(a) set-asides for federally-funded contracts simply because their owner is a member of a preferred racial group.  In fact, multi-millionaires can qualify for the 8(a), since the SBA has a $6 million threshold on a person’s assets. 

In Ultima Services Corp. vs. U.S. Department of Agriculture, a federal court held this scheme unlawful. The plaintiff, a white woman who operated a small business, was excluded from bidding on government contracts subject to the set asides. (She was represented by the Center for Individual Rights (CIR) on whose board of directors I sit.)

CIR relied on the Constitution’s prohibition of federal laws and regulations that classify people on the basis of race, absent narrow tailoring to achieve a compelling governmental interest.  It argued that the government’s claim of a compelling interest in rectifying historic discrimination is undermined by the absence of meaningful inquiry into the background of the firms receiving the benefits.

In a decision that produced “a full-blown panic” from owners of minority businesses, a federal district court agreed with this reasoning. I discussed that ruling here.

Harris is promising the “forgivable loans” to “Black entrepreneurs” as a class without regard to individual circumstances. This makes her program unconstitutional.

It also means that her “I’ll follow the law” mantra isn’t just a dodge. It’s a lie.