Historically, Congress has been endowed with unique powers to remedy past injustices and advance the social interest, even when such laws burden particular classes. From a legal standpoint, the remedies instituted by Congress to correct past racial injustices have been subject to a lesser standard of scrutiny by the Courts.
In the mid-1970s, Congress enacted laws requiring federal departments and agencies to take affirmative measures to correct the gross under-utilization of minorities and women in federal contracting. In 1977, the Public Works Employment Act mandated that, absent an administrative waiver, at least 10 percent of federal funds for local public works projects must be used by state and local grantees to procure services or supplies from minority businesses. Soon after the Act was established, H. Earl Fullilove and several associations of construction contractors challenged its constitutionality. 1 This was the first legal challenge to a federal set-aside program to reach the Supreme Court. In the petition, the constitutionality of the federal government’s 10 percent set-aside provision, established by the Public Works Employment Act, was challenged. The suit alleged that Fullilove and others incurred injury due to the enforcement of the minority business requirement. They argued that the requirement violated the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment.
On 2 July 1980 the U.S. Supreme Court rendered a decision in the case. A plurality of Justices found the program to be constitutional. The decision allowed federal departments and agencies to operate minority business programs and state and local agencies felt that the ruling gave them the same latitude.