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SUPREME COURT OF THE UNITED STATES
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No. 93-1841
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ADARAND CONSTRUCTORS, INC., PETITIONER v.
FEDERICO PENA, SECRETARY OF
 TRANSPORTATION, et al.
on writ of certiorari to the united states court
of appeals for the tenth circuit
[June 12, 1995]

  Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
  Instead of deciding this case in accordance with
controlling precedent, the Court today delivers a discon-
certing lecture about the evils of governmental racial
classifications.  For its text the Court has selected three
propositions, represented by the bywords -skepticism,-
-consistency,- and -congruence.-  See ante, at 21-22.  I
shall comment on each of these propositions, then add
a few words about stare decisis, and finally explain why
I believe this Court has a duty to affirm the judgment
of the Court of Appeals.

                            I
  The Court's concept of skepticism is, at least in princi-
ple, a good statement of law and of common sense.
Undoubtedly, a court should be wary of a governmental
decision that relies upon a racial classification.  -Be-
cause racial characteristics so seldom provide a relevant
basis for disparate treatment, and because classifications
based on race are potentially so harmful to the entire
body politic,- a reviewing court must satisfy itself that
the reasons for any such classification are -clearly
identified and unquestionably legitimate.-  Fullilove v.

Klutznick, 448 U. S. 448, 533-535 (1980) (Stevens, J.,
dissenting).  This principle is explicit in Chief Justice
Burger's opinion, id., at 480; in Justice Powell's concur-
rence, id., at 496; and in my dissent in Fullilove, id., at
533-534.  I welcome its renewed endorsement by the
Court today.  But, as the opinions in Fullilove demon-
strate, substantial agreement on the standard to be
applied in deciding difficult cases does not necessarily
lead to agreement on how those cases actually should or
will be resolved.  In my judgment, because uniform
standards are often anything but uniform, we should
evaluate the Court's comments on -consistency,- -congru-
ence,- and stare decisis with the same type of skepticism
that the Court advocates for the underlying issue.

                           II
  The Court's concept of -consistency- assumes that
there is no significant difference between a decision by
the majority to impose a special burden on the members
of a minority race and a decision by the majority to
provide a benefit to certain members of that minority
notwithstanding its incidental burden on some members
of the majority.  In my opinion that assumption is
untenable.  There is no moral or constitutional equiva-
lence between a policy that is designed to perpetuate a
caste system and one that seeks to eradicate racial
subordination.  Invidious discrimination is an engine of
oppression, subjugating a disfavored group to enhance or
maintain the power of the majority.  Remedial race-
based preferences reflect the opposite impulse: a desire
to foster equality in society.  No sensible conception of
the Government's constitutional obligation to -govern
impartially,- Hampton v. Mow Sun Wong, 426 U. S. 88,
100 (1976), should ignore this distinction.
  To illustrate the point, consider our cases addressing
the Federal Government's discrimination against Japa-
nese Americans during World War II,  Hirabayashi v.
United States, 320 U. S. 81 (1943), and Korematsu v.
United States, 323 U. S. 214 (1944).  The discrimination
at issue in those cases was invidious because the
Government imposed special burdens-a curfew and
exclusion from certain areas on the West Coast-on the
members of a minority class defined by racial and ethnic
characteristics.  Members of the same racially defined
class exhibited exceptional heroism in the service of our
country during that War.  Now suppose Congress
decided to reward that service with a federal program
that gave all Japanese-American veterans an extraordi-
nary preference in Government employment.  Cf. Person-
nel Administrator of Mass. v. Feeney, 442 U. S. 256
(1979).  If Congress had done so, the same racial charac-
teristics that motivated the discriminatory burdens in
Hirabayashi and Korematsu would have defined the pre-
ferred class of veterans.  Nevertheless, -consistency-
surely would not require us to describe the incidental
burden on everyone else in the country as -odious- or
-invidious- as those terms were used in those cases.  We
should reject a concept of -consistency- that would view
the special preferences that the National Government
has provided to Native Americans since 1834 as com-
parable to the official discrimination against African
Americans that was prevalent for much of our history.
  The consistency that the Court espouses would
disregard the difference between a -No Trespassing- sign
and a welcome mat.  It would treat a Dixiecrat Sena-
tor's decision to vote against Thurgood Marshall's
confirmation in order to keep African Americans off the
Supreme Court as on a par with President Johnson's
evaluation of his nominee's race as a positive factor.  It
would equate a law that made black citizens ineligible
for military service with a program aimed at recruiting
black soldiers.  An attempt by the majority to exclude
members of a minority race from a regulated market is
fundamentally different from a subsidy that enables a
relatively small group of newcomers to enter that
market.  An interest in -consistency- does not justify
treating differences as though they were similarities.
  The Court's explanation for treating dissimilar race-
based decisions as though they were equally objection-
able is a supposed inability to differentiate between
-invidious- and -benign- discrimination.  Ante, at 23-25.
But the term -affirmative action- is common and well
understood.  Its presence in everyday parlance shows
that people understand the difference between good
intentions and bad.  As with any legal concept, some
cases may be difficult to classify, but our equal protec-
tion jurisprudence has identified a critical difference
between state action that imposes burdens on a dis-
favored few and state action that benefits the few -in
spite of- its adverse effects on the many.  Feeney, 442
U. S., at 279.
  Indeed, our jurisprudence has made the standard to be
applied in cases of invidious discrimination turn on
whether the discrimination is -intentional,- or whether,
by contrast, it merely has a discriminatory -effect.-
Washington v. Davis, 426 U. S. 229 (1976).  Surely this
distinction is at least as subtle, and at least as difficult
to apply, see id., at 253-254 (concurring opinion), as the
usually obvious distinction between a measure intended
to benefit members of a particular minority race and a
measure intended to burden a minority race.  A state
actor inclined to subvert the Constitution might easily
hide bad intentions in the guise of unintended -effects-;
but I should think it far more difficult to enact a law
intending to preserve the majority's hegemony while
casting it plausibly in the guise of affirmative action for
minorities.
  Nothing is inherently wrong with applying a single
standard to fundamentally different situations, as long
as that standard takes relevant differences into account.
For example, if the Court in all equal protection cases
were to insist that differential treatment be justified by
relevant characteristics of the members of the favored
and disfavored classes that provide a legitimate basis for
disparate treatment, such a standard would treat
dissimilar cases differently while still recognizing that
there is, after all, only one Equal Protection Clause.
See Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 451-455 (1985) (Stevens, J., concurring); San An-
tonio Independent School Dist. v. Rodriguez, 411 U. S. 1,
98-110 (1973) (Marshall, J., dissenting).  Under such a
standard, subsidies for disadvantaged businesses may
be constitutional though special taxes on such busi-
nesses would be invalid.  But a single standard that
purports to equate remedial preferences with invidious
discrimination cannot be defended in the name of -equal
protection.-
  Moreover, the Court may find that its new -consist-
ency- approach to race-based classifications is difficult to
square with its insistence upon rigidly separate catego-
ries for discrimination against different classes of
individuals.  For example, as the law currently stands,
the Court will apply -intermediate scrutiny- to cases of
invidious gender discrimination and -strict scrutiny- to
cases of invidious race discrimination, while applying the
same standard for benign classifications as for invidious
ones.  If this remains the law, then today's lecture about
-consistency- will produce the anomalous result that the
Government can more easily enact affirmative-action
programs to remedy discrimination against women than
it can enact affirmative-action programs to remedy
discrimination against African Americans-even though
the primary purpose of the Equal Protection Clause was
to end discrimination against the former slaves.  See
Associated General Contractors of Cal., Inc. v. San
Francisco, 813 F. 2d 922 (CA9 1987) (striking down
racial preference under strict scrutiny while upholding
gender preference under intermediate scrutiny).  When
a court becomes preoccupied with abstract standards, it
risks sacrificing common sense at the altar of formal
consistency.
  As a matter of constitutional and democratic principle,
a decision by representatives of the majority to discrimi-
nate against the members of a minority race is funda-
mentally different from those same representatives'
decision to impose incidental costs on the majority of
their constituents in order to provide a benefit to a
disadvantaged minority.  Indeed, as I have previously
argued, the former is virtually always repugnant to the
principles of a free and democratic society, whereas the
latter is, in some circumstances, entirely consistent with
the ideal of equality.  Wygant v. Jackson Board of Ed.,
476 U. S. 267, 316-317 (1986) (Stevens, J., dissent-
ing).  By insisting on a doctrinaire notion of -con-
sistency- in the standard applicable to all race-based
governmental actions, the Court obscures this essential
dichotomy.

                           III
  The Court's concept of -congruence- assumes that
there is no significant difference between a decision by
the Congress of the United States to adopt an affirma-
tive-action program and such a decision by a State or a
municipality.  In my opinion that assumption is untena-
ble.  It ignores important practical and legal differences
between federal and state or local decisionmakers.
  These differences have been identified repeatedly and
consistently both in opinions of the Court and in
separate opinions authored by members of today's ma-
jority.  Thus, in Metro Broadcasting, Inc. v. FCC, 497
U. S. 547 (1990), in which we upheld a federal program
designed to foster racial diversity in broadcasting, we
identified the special -institutional competence- of our
National Legislature.  Id., at 563.  -It is of overriding
significance in these cases,- we were careful to empha-
size, -that the FCC's minority ownership programs have
been specifically approved-indeed, mandated-by
Congress.-  Ibid.  We recalled the several opinions in
Fullilove that admonished this Court to -`approach our
task with appropriate deference to the Congress, a co-
equal branch charged by the Constitution with the
power to -provide for the . . . general Welfare of the
United States- and -to enforce, by appropriate legisla-
tion,- the equal protection guarantees of the Fourteenth
Amendment.'  [Fullilove, 448 U. S.], at 472; see also id.,
at 491; id., at 510, and 515-516, n. 14 (Powell, J., con-
curring); id., at 517-520 (Marshall, J., concurring in
judgment).-  Id., at 563.  We recalled that the opinions
of Chief Justice Burger and Justice Powell in Fullilove
had -explained that deference was appropriate in light
of Congress' institutional competence as the National
Legislature, as well as Congress' powers under the Com-
merce Clause, the Spending Clause, and the Civil War
Amendments.-  Ibid. (citations and footnote omitted).
  The majority in Metro Broadcasting and the plurality
in Fullilove were not alone in relying upon a critical
distinction between federal and state programs.  In his
separate opinion in Richmond v. J. A. Croson Co., 488
U. S. 469, 520-524 (1989), Justice Scalia discussed the
basis for this distinction.  He observed that -it is one
thing to permit racially based conduct by the Federal
Government-whose legislative powers concerning mat-
ters of race were explicitly enhanced by the Fourteenth
Amendment, see  U. S. Const., Amdt. 14, 5-and quite
another to permit it by the precise entities against
whose conduct in matters of race that Amendment was
specifically directed, see Amdt. 14, 1.-  Id., at 521-522.
Continuing, Justice Scalia explained why a -sound dis-
tinction between federal and state (or local) action based
on race rests not only upon the substance of the Civil
War Amendments, but upon social reality and govern-
mental theory.-  Id., at 522.
-What the record shows, in other words, is that
racial discrimination against any group finds a more
ready expression at the state and local than at the
federal level.  To the children of the Founding
Fathers, this should come as no surprise.  An acute
awareness of the heightened danger of oppression
from political factions in small, rather than large,
political units dates to the very beginning of our
national history.  See G. Wood, The Creation of the
American Republic, 1776-1787, pp. 499-506 (1969).
As James Madison observed in support of the
proposed Constitution's enhancement of national
powers:
-`The smaller the society, the fewer probably will be
the distinct parties and interests composing it; the
fewer the distinct parties and interests, the more
frequently will a majority be found of the same
party; and the smaller the number of individuals
composing a majority, and the smaller the compass
within which they are placed, the more easily will
they concert and execute their plan of oppression.
Extend the sphere and you take in a greater variety
of parties and interests; you make it less probable
that a majority of the whole will have a common
motive to invade the rights of other citizens; or if
such a common motive exists, it will be more diffi-
cult for all who feel it to discover their own strength
and to act in unison with each other.'  The Federal-
ist No. 10, pp. 82-84 (C. Rossiter ed. 1961).-  Id.,
at 523 (Scalia, J., concurring in judgment).
  In her plurality opinion in Croson, Justice O'Connor
also emphasized the importance of this distinction when
she responded to the City's argument that Fullilove was
controlling.  She wrote:
      -What appellant ignores is that Congress, unlike
any State or political subdivision, has a specific
constitutional mandate to enforce the dictates of the
Fourteenth Amendment.  The power to `enforce' may
at times also include the power to define situations
which Congress determines threaten principles of
equality and to adopt prophylactic rules to deal with
those situations.  The Civil War Amendments them-
selves worked a dramatic change in the balance be-
tween congressional and state power over matters of
race.-  488 U. S., at 490 (plurality opinion of O'Con-
nor, J., joined by Rehnquist, C.J., and White, J.)
(citations omitted).
  An additional reason for giving greater deference to
the National Legislature than to a local law-making
body is that federal affirmative-action programs repre-
sent the will of our entire Nation's elected representa-
tives, whereas a state or local program may have an
impact on nonresident entities who played no part in the
decision to enact it.  Thus, in the state or local context,
individuals who were unable to vote for the local
representatives who enacted a race-conscious program
may nonetheless feel the effects of that program.  This
difference recalls the goals of the Commerce Clause,
U. S. Const., Art. I, 8, cl. 3, which permits Congress to
legislate on certain matters of national importance while
denying power to the States in this area for fear of
undue impact upon out-of-state residents.  See Southern
Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761,
767-768, n. 2 (1945) (-[T]o the extent that the burden of
state regulation falls on interests outside the state, it is
unlikely to be alleviated by the operation of those politi-
cal restraints normally exerted when interests within the
state are affected-).
  Ironically, after all of the time, effort, and paper this
Court has expended in differentiating between federal
and state affirmative action, the majority today virtually
ignores the issue.  See ante, at 28-29.  It provides not
a word of direct explanation for its sudden and enor-
mous departure from the reasoning in past cases.  Such
silence, however, cannot erase the difference between
Congress' institutional competence and constitutional
authority to overcome historic racial subjugation and the
States' lesser power to do so.
  Presumably, the majority is now satisfied that its
theory of -congruence- between the substantive rights
provided by the Fifth and Fourteenth Amendments
disposes of the objection based upon divided constitu-
tional powers.  But it is one thing to say (as no one
seems to dispute) that the Fifth Amendment encom-
passes a general guarantee of equal protection as broad
as that contained within the Fourteenth Amendment.  It
is another thing entirely to say that Congress' institutional
competence and constitutional authority entitles it to no
greater deference when it enacts a program designed to
foster equality than the deference due a State legisla-
ture.  The latter is an extraordinary proposition; and,
as the foregoing discussion demonstrates, our precedents
have rejected it explicitly and repeatedly.
  Our opinion in Metro Broadcasting relied on several
constitutional provisions to justify the greater deference
we owe to Congress when it acts with respect to private
individuals.  497 U. S., at 563.  In the programs
challenged in this case, Congress has acted both with
respect to private individuals and, as in Fullilove, with
respect to the States themselves.  When Congress does
this, it draws its power directly from 5 of the Four-
teenth Amendment.  That section reads: -The Congress
shall have power to enforce, by appropriate legislation,
the provisions of this article.-  One of the -provisions of
this article- that Congress is thus empowered to enforce
reads: -No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the
equal protection of the laws.-  U. S. Const., Amdt. 14,
1.  The Fourteenth Amendment directly empowers
Congress at the same time it expressly limits the
States.  This is no accident.  It represents our
Nation's consensus, achieved after hard experience
throughout our sorry history of race relations, that the
Federal Government must be the primary defender of
racial minorities against the States, some of which
may be inclined to oppress such minorities.  A rule
of -congruence- that ignores a purposeful -incongru-
ity- so fundamental to our system of government is
unacceptable.
  In my judgment, the Court's novel doctrine of -congru-
ence- is seriously misguided.  Congressional deliberations
about a matter as important as affirmative action should
be accorded far greater deference than those of a State
or municipality.

                           IV
  The Court's concept of stare decisis treats some of the
language we have used in explaining our decisions as
though it were more important than our actual holdings.
In my opinion that treatment is incorrect.
  This is the third time in the Court's entire history
that it has considered the constitutionality of a federal
affirmative-action program.  On each of the two prior
occasions, the first in 1980, Fullilove v. Klutznick, 448
U. S. 448, and the second in 1990, Metro Broadcasting,
Inc. v. FCC, 497 U. S. 547, the Court upheld the
program.  Today the Court explicitly overrules Metro
Broadcasting (at least in part), ante, at 25-26, and
undermines Fullilove by recasting the standard on which
it rested and by calling even its holding into question,
ante, at 34.  By way of explanation, Justice O'Connor
advises the federal agencies and private parties that
have made countless decisions in reliance on those cases
that -we do not depart from the fabric of the law; we
restore it.-  Ante, at 32.  A skeptical observer might ask
whether this pronouncement is a faithful application of
the doctrine of stare decisis.  A brief comment on each
of the two ailing cases may provide the answer.
  In the Court's view, our decision in Metro Broadcast-
ing was inconsistent with the rule announced in Rich-
mond v. J. A. Croson Co., 488 U. S. 469 (1989).  Ante,
at 23-24.  But two decisive distinctions separate those
two cases.  First, Metro Broadcasting involved a federal
program, whereas Croson involved a city ordinance.
Metro Broadcasting thus drew primary support from
Fullilove, which predated Croson and which Croson
distinguished on the grounds of the federal-state dichot-
omy that the majority today discredits.  Although mem-
bers of today's majority trumpeted the importance of
that distinction in Croson, they now reject it in the
name of -congruence.-  It is therefore quite wrong for
the Court to suggest today that overruling Metro
Broadcasting merely restores the status quo ante, for the
law at the time of that decision was entirely open to the
result the Court reached.  Today's decision is an unjusti-
fied departure from settled law.
  Second, Metro Broadcasting's holding rested on more
than its application of -intermediate scrutiny.-  Indeed,
I have always believed that, labels notwithstanding, the
FCC program we upheld in that case would have
satisfied any of our various standards in affirmative-
action cases-including the one the majority fashions
today.  What truly distinguishes Metro Broadcasting
from our other affirmative-action precedents is the
distinctive goal of the federal program in that case.
Instead of merely seeking to remedy past discrimination,
the FCC program was intended to achieve future
benefits in the form of broadcast diversity.  Reliance on
race as a legitimate means of achieving diversity was
first endorsed by Justice Powell in Regents of Univ. of
California v. Bakke, 438 U. S. 265, 311-319 (1978).
Later, in Wygant v. Jackson Board of Ed., 476 U. S. 267
(1986), I also argued that race is not always irrelevant
to governmental decisionmaking, see id., at 314-315
(Stevens, J., dissenting); in response, Justice O'Connor
correctly noted that, although the School Board had
relied on an interest in providing black teachers to serve
as role models for black students, that interest -should
not be confused with the very different goal of promoting
racial diversity among the faculty.-  Id., at 288, n.  She
then added that, because the school board had not relied
on an interest in diversity, it was not -necessary to
discuss the magnitude of that interest or its applicability
in this case.-  Ibid.
  Thus, prior to Metro Broadcasting, the interest in
diversity had been mentioned in a few opinions, but it
is perfectly clear that the Court had not yet decided
whether that interest had sufficient magnitude to justify
a racial classification.  Metro Broadcasting, of course,
answered that question in the affirmative.  The majority
today overrules Metro Broadcasting only insofar as it is
-inconsistent with [the] holding- that strict scrutiny
applies to -benign- racial classifications promulgated by
the Federal Government.  Ante, at 26.  The proposition
that fostering diversity may provide a sufficient interest
to justify such a program is not inconsistent with the
Court's holding today-indeed, the question is not
remotely presented in this case-and I do not take the
Court's opinion to diminish that aspect of our decision
in Metro Broadcasting.
  The Court's suggestion that it may be necessary in the
future to overrule Fullilove in order to restore the fabric
of the law, ante, at 34, is even more disingenuous than
its treatment of Metro Broadcasting.  For the Court en-
dorses the -strict scrutiny- standard that Justice Powell
applied in Bakke, see ante, at 22-23, and acknowledges
that he applied that standard in Fullilove as well, ante,
at 16-17.  Moreover, Chief Justice Burger also expressly
concluded that the program we considered in Fullilove
was valid under any of the tests articulated in Bakke,
which of course included Justice Powell's.  448 U. S., at
492.  The Court thus adopts a standard applied in Fulli-
love at the same time it questions that case's continued
vitality and accuses it of departing from prior law.  I
continue to believe that the Fullilove case was incor-
rectly decided, see id., at 532-554 (Stevens, J., dissent-
ing), but neither my dissent nor that filed by Justice
Stewart, id., at 522-532, contained any suggestion that
the issue the Court was resolving had been decided be-
fore.  As was true of Metro Broadcasting, the Court in
Fullilove decided an important, novel, and difficult ques-
tion.  Providing a different answer to a similar question
today cannot fairly be characterized as merely -restor-
ing- previously settled law.

                            V
  The Court's holding in Fullilove surely governs the
result in this case.  The Public Works Employment Act
of 1977 (1977 Act), 91 Stat. 116, which this Court
upheld in Fullilove, is different in several critical
respects from the portions of the Small Business Act
(SBA), 72 Stat. 384, as amended, 15 U. S. C. 631 et
seq., and the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (STURAA), 101 Stat.
132, challenged in this case.  Each of those differences
makes the current program designed to provide assis-
tance to disadvantaged business enterprises (DBE's)
significantly less objectionable than the 1977 categorical
grant of $400 million in exchange for a 10% set-aside in
public contracts to -a class of investors defined solely by
racial characteristics.-  Fullilove, 448 U. S., at 532
(Stevens, J., dissenting).  In no meaningful respect is
the current scheme more objectionable than the 1977
Act.  Thus, if the 1977 Act was constitutional, then so
must be the SBA and STURAA.  Indeed, even if my
dissenting views in Fullilove had prevailed, this program
would be valid.
  Unlike the 1977 Act, the present statutory scheme
does not make race the sole criterion of eligibility for
participation in the program.  Race does give rise to a
rebuttable presumption of social disadvantage which, at
least under STURAA, gives rise to a second rebuttable
presumption of economic disadvantage.  49 CFR 23.62
(1994).  But a small business may qualify as a DBE,
by showing that it is both socially and economically
disadvantaged, even if it receives neither of these
presumptions.  13 CFR 124.105(c), 124.106 (1995); 48
CFR 19.703 (1994); 49 CFR pt. 23, subpt. D., Appen-
dixes A and C (1994).  Thus, the current preference is
more inclusive than the 1977 Act because it does not
make race a necessary qualification.
  More importantly, race is not a sufficient qualification.
Whereas a millionaire with a long history of financial
successes, who was a member of numerous social clubs
and trade associations, would have qualified for a
preference under the 1977 Act merely because he was an
Asian American or an African American, see Fullilove,
448 U. S., at 537-538, 540, 543-544, and n. 16, 546
(Stevens, J., dissenting), neither the SBA nor STURAA
creates any such anomaly.  The DBE program excludes
members of minority races who are not, in fact, socially
or economically disadvantaged.  13 CFR 124.106(a)(ii)
(1995); 49 CFR 23.69 (1994).  The presumption of social
disadvantage reflects the unfortunate fact that irrational
racial prejudice-along with its lingering effects-still
survives.  The presumption of economic disadvantage
embodies a recognition that success in the private sector
of the economy is often attributable, in part, to social
skills and relationships.  Unlike the 1977 set-asides, the
current preference is designed to overcome the social and
economic disadvantages that are often associated with
racial characteristics.  If, in a particular case, these
disadvantages are not present, the presumptions can be
rebutted.  13 CFR 124.601-124.610 (1995); 49 CFR
23.69 (1994).  The program is thus designed to allow
race to play a part in the decisional process only when
there is a meaningful basis for assuming its relevance.
  In this connection, I think it is particularly significant
that the current program targets the negotiation of
subcontracts between private firms.  The 1977 Act
applied entirely to the award of public contracts, an area
of the economy in which social relationships should be
irrelevant and in which proper supervision of govern-
ment contracting officers should preclude any discrimina-
tion against particular bidders on account of their race.
In this case, in contrast, the program seeks to overcome
barriers of prejudice between private parties-specifi-
cally, between general contractors and subcontractors.
The SBA and STURAA embody Congress' recognition
that such barriers may actually handicap minority firms
seeking business as subcontractors from established lead-
ers in the industry that have a history of doing business
with their golfing partners.  Indeed, minority subcontrac-
tors may face more obstacles than direct, intentional ra-
cial prejudice: they may face particular barriers simply
because they are more likely to be new in the business
and less likely to know others in the business.  Given
such difficulties, Congress could reasonably find that a
minority subcontractor is less likely to receive favors
from the entrenched businesspersons who award sub-
contracts only to people with whom-or with whose
friends-they have an existing relationship.  This pro-
gram, then, if in part a remedy for past discrimination,
is most importantly a forward-looking response to prac-
tical problems faced by minority subcontractors.
  The current program contains another forward-looking
component that the 1977 set-asides did not share.
Section 8(a) of the SBA provides for periodic review of
the status of DBE's, 15 U. S. C. 637(a)(B)-(C) (1988
ed., Supp. V); 13 CFR 124.602(a) (1995), and DBE
status can be challenged by a competitor at any time
under any of the routes to certification.  13 CFR
124.603 (1995); 49 CFR 23.69 (1994).  Such review
prevents ineligible firms from taking part in the pro-
gram solely because of their minority ownership, even
when those firms were once disadvantaged but have
since become successful.  The emphasis on review also
indicates the Administration's anticipation that after
their presumed disadvantages have been overcome, firms
will -graduate- into a status in which they will be able
to compete for business, including prime contracts, on an
equal basis.  13 CFR 124.208 (1995).  As with other
phases of the statutory policy of encouraging the
formation and growth of small business enterprises, this
program is intended to facilitate entry and increase
competition in the free market.
  Significantly, the current program, unlike the 1977
set-aside, does not establish any requirement-numerical
or otherwise-that a general contractor must hire DBE
subcontractors.  The program we upheld in Fullilove
required that 10% of the federal grant for every feder-
ally funded project be expended on minority business
enterprises.  In contrast, the current program contains
no quota.  Although it provides monetary incentives to
general contractors to hire DBE subcontractors, it does
not require them to hire DBE's, and they do not lose
their contracts if they fail to do so.  The importance of
this incentive to general contractors (who always seek to
offer the lowest bid) should not be underestimated; but
the preference here is far less rigid, and thus more
narrowly tailored, than the 1977 Act.  Cf. Bakke, 438
U. S., at 319-320 (opinion of Powell, J.) (distinguishing
between numerical set-asides and consideration of race
as a factor).
  Finally, the record shows a dramatic contrast between
the sparse deliberations that preceded the 1977 Act, see
Fullilove, 448 U. S., at 549-550 (Stevens, J., dissent-
ing), and the extensive hearings conducted in several
Congresses before the current program was developed.
However we might evaluate the benefits and costs-both
fiscal and social-of this or any other affirmative-action
program, our obligation to give deference to Congress'
policy choices is much more demanding in this case than
it was in Fullilove.  If the 1977 program of race-based
set-asides satisfied the strict scrutiny dictated by Justice
Powell's vision of the Constitution-a vision the Court
expressly endorses today-it must follow as night follows
the day that the Court of Appeals' judgment upholding
this more carefully crafted program should be affirmed.

                           VI
  My skeptical scrutiny of the Court's opinion leaves me
in dissent.  The majority's concept of -consistency-
ignores a difference, fundamental to the idea of equal
protection, between oppression and assistance.  The
majority's concept of -congruence- ignores a difference,
fundamental to our constitutional system, between the
Federal Government and the States.  And the majority's
concept of stare decisis ignores the force of binding
precedent.  I would affirm the judgment of the Court of
Appeals.