Fullilove v. Klutznick

LOCATION: Congress

DOCKET NO.: 78-1007
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 448 US 448 (1980)
ARGUED: Nov 27, 1979
DECIDED: Jul 02, 1980

Drew S. Days, III - Argued the cause for the respondents
Robert G. Benisch - Argued the cause for Fullilove et al
Robert J. Hickey - Argued the cause for General Building Contractors of New York State, Inc

Facts of the case

In 1977, Congress enacted legislation requiring that at least 10 percent of federal funds granted for local public works programs had to be used to obtain services or supplies from businesses owned by minority group members. H. Earl Fullilove and other contractors filed suit, claiming they had been economically harmed by the enforcement of the statute. The defendant was Philip M. Klutznick, Secretary of Commerce.


Did the provision of the statute for minority business enterprises violate the Equal Protection Clause of the Fourteenth Amendment?

Media for Fullilove v. Klutznick

Audio Transcription for Oral Argument - November 27, 1979 in Fullilove v. Klutznick

Warren E. Burger:

We will hear arguments first this morning in Fullilove v. Juanita Kreps, the Secretary of Commerce.

Mr. Benisch, you may proceed whenever you are ready.

Robert G. Benisch:

Mr. Chief Justice, and may it please the Court.

This is a case of first impression and, indeed, of national importance.

We are called upon today for the first time to deal with the question of the constitutionality of a mandatory racial quota imposed by Congress in a public works funding Act.

This is not a case dealing with employment discrimination or discrimination on the part of unions in the construction industry.

The question is whether or not Congress can enact an outright racial quota and, if so, under what circumstances.

The Act we are concerned with is the Local Public Works Employment Act where under (2) $4 billion was appropriated for local public works funding throughout the country in order to assist what was at the time a flagging construction industry.

Just prior to the passage of this appropriations bill Representative Mitchell proposed an amendment to the bill which provided in substance that any grantee receiving funds other than the Act must assure the Secretary that at least 10 percent of those monies would be set aside and appropriated solely for the use of minority business enterprises as defined in the Act.

William H. Rehnquist:

Mr. Benisch, does it make any difference in your argument whether Congress was acting under its authority to tax and spend or whether it was acting under its authority to enforce the 14th Amendment?

Robert G. Benisch:

I think, Your Honor, in looking at the legislative history and record here it makes a great deal of difference to observe what Congress was about when it passed the Local Public Works Employment Act.

In other words, it was not dealing in the area of civil rights legislation such as it might have been doing when it passed the Civil Rights Act of 1964.

William H. Rehnquist:

Did Congress in this particular Act make any findings as to discrimination in the employment area?

Robert G. Benisch:

I submit, Your Honor, none whatsoever, and that is the first prong to my argument, that indeed an examination of the legislative record and history discloses that there was absolutely no finding made whatsoever in the record or even in the discussions, of found discrimination on the part of the non-minority business community in the construction industry.

Now, it is -- I think it is critical to note at the outset here that in its recent decision this Court in Personnel Administrator of Massachusetts v. Feeney held that a racial classification regardless of purported motivation is presumptively invalid and can be upheld only upon a showing of extraordinary justification.

I submit that with that presumption of invalidity in mind it is therefore incumbent on the Government in this action to rebut that presumption because we are dealing purely and simply with a racial classification required across the board and mandatory.

Now, we submit here that neither the Government nor the courts below have cited any authority which rebuts the presumption and validity of that racial classification.

For purposes of my argument here today, petitioners will concede that if the racial classification or the amendment to the Act were to pass what has become known as the strict scrutiny test, it might be held that the presumption is rebutted.

Now, the strict scrutiny test has two prongs, as we know.

The first is there must be a compelling governmental interest behind the passage of the Act or the legislation in question; and, secondly, the means used or the mechanism must be the least intrusive or onerous available.

Now, as to the compelling Government --

William H. Rehnquist:

Why can't Congress just spend the money it raises by taxation in the manner it deems best?

Robert G. Benisch:

Your Honor, the spending power, the cases have held that Congress cannot spend the taxpayers' money which is collected on a nondiscriminatory basis.

Congress can't spend it in a discriminatory manner.

But without getting cute about it, if you will, I am simply saying that whatever Congress does with respect to monies or any passage, it must do in a constitutional manner.

William H. Rehnquist:

No one doubts that.

But do you think that Congress is under the same strictures when it simply grants money as it is when it regulates private industry in a constitutional sense?

Robert G. Benisch:

I most certainly do.

In other words, I don't think that the subject matter of the legislation affects in any way the constitutionality of the Act being passed.

In other words, whether Congress is acting under its spending powers, whether it is acting under its civil rights powers, or whatever, whatever it does must be done in -- pursuant to the Constitution.