Hans Bader complained in a Dec. 10 CNSNews.com column:
The Department of Veterans Affairs is going to give priority to black and Hispanic veterans over white and Asian veterans when administering the vaccine for COVID-19. This racial preference is unconstitutional.
The VA is doing this because it thinks blacks and Hispanics are at greater risk. But these minorities are not inherently at greater risk of contracting the virus. There is nothing special about their genes that puts them in danger. It is just that their jobs, neighborhoods, and backgrounds tend to put them in more frequent contact with people who already carry COVID-19. So it is those characteristics -- not race -- that the VA can legally consider in handing out the vaccine to veterans. As the Supreme Court explained in Bartlett v. Strickland (2009), the government is supposed to use race only as a "last resort." That's true even when it has a better reason for using race than the VA has -- like addressing a history of past governmental discrimination against a minority group.
Yes, Bader is really arguing that. But at no point does he offer evidence that blacks and Hispanics are "not inherently at greater risk of contracting the virus" despite the fact that it's indisputably true that Blacks and Hispanics have risk factors that lead to them catching and dying from COVID-19.
Bader went into denial on this point, dismissing it all as societal, saying it's effectively their fault that they're more exposed to catching it:
But generally speaking, the fact that a group has been disproportionately affected is not a reason for giving the group a racial preference, even if the disproportionate impact is from a government policy -- rather than, as is the case for most black and Hispanic people who have contracted COVID, from societal factors that put them into more frequent contact with COVID carriers.
The Supreme Court has ruled that "societal discrimination" against a minority group is not a valid reason for giving priority to members of that group. (See Richmond v. J.A. Croson Co. (1989)). So even if black and Hispanic people experience discrimination that shunts them into lower-paying jobs with increased risk of catching the coronavirus, that wouldn't be reason enough for the VA to give them a racial preference.
So the fact that "some groups of people have been disproportionately affected by COVID-19" is not a reason to give such groups priority in access to the vaccine, based on their race.
The VA may argue that it is OK to consider veterans' race because it is only doing so as one of several factors, such as age and existing health problems. But giving a racial preference is presumptively unconstitutional, even when race is just one of many factors being used by a government agency and there are special reasons for it to prize racial diversity.
Curiously, Bader doesn't offer a plan to reduce the way Blacks and Hispanics are "disproportionately affected" by coronavirus, despite his framing as merely a societal problem; he simply rants that they don't deserve to cut the line in front of him. Not exactly the smartest hill for him to choose to die on.