Fullilove v. Klutznick
Encyclopedia
Fullilove v. Klutznick, 448 U.S. 448
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 (1980), was a case in which the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 held that the U.S. Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 could constitutionally use its spending power to remedy past discrimination. The case arose as a suit against the enforcement of provisions in a 1977 spending bill that required 10% of federal funds going towards public works programs to go to minority-owned companies.

Opinion of the Court

The Court was deeply divided as to both the rationale for the decision and the outcome. Five separate opinions were filed, none of which commanded the support of more than three members of the Court. Chief Justice Burger wrote a plurality opinion, joined by Justices White and Powell; Justice Powell also wrote a separate concurrence. Justice Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

 delivered an opinion for a second plurality with an entirely different basis in law, joined by Justices Brennan and Blackmun. Since there was no single opinion that represented the views of a majority of the court, nor a clear proposition in either plurality which commanded a majority, only the judgment of the court -- affirming the United States Court of Appeals for the Second Circuit -- has unambiguously precedential value.

The Court held that the minority set-aside program was a legitimate exercise of congressional power, and that under the particular facts at issue, Congress could pursue the objectives of the minority business enterprise program under the Spending Power. The plurality opinion noted that Congress could have regulated the practices of contractors on federally funded projects under the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

 as well. The plurality further held that in the remedial context, Congress did not have to act "in a wholly 'color-blind' fashion."

Dissent

Two dissenting opinions were written, one by Justice Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...

, joined by Justice Rehnquist, and the other by Justice Stevens. Justice Stevens objected to the congressional procedures to determine the 10% set-aside figure.

Subsequent History

Fullilove v. Klutnick was overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). There the Court adopted strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...

 for race preference in federal contracting. This brought the standard of review into uniformity with City of Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co., 488 U.S. 469 was a case in which the United States Supreme Court held that the city of Richmond's minority set-aside program, which gave preference to minority business enterprises in the awarding of municipal contracts, was unconstitutional under the Equal...

, 488 U.S. 469 (1989), which applied strict scrutiny for race preferences in state and local government contracting.
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