Cite as: 515 U. S. 200 (1995)
Souter, J., dissenting
discrimination, as under Richmond v. J. A. Croson Co., 488 U. S. 469 (1989), sufficient to justify surpassing the congressional objective. See 16 F. 3d 1537, 1544 (CA10 1994) ("The gravamen of Adarand's argument is that the CFLHD must make particularized findings of past discrimination to justify its race-conscious SCC program under Croson because the precise goals of the challenged SCC program were fashioned and specified by an agency and not by Congress"); Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240, 242 (Colo. 1992) ("Plaintiff's motion for summary judgment seeks a declaratory judgment and permanent injunction against the DOT, the FHA and the CFLHD until specific findings of discrimination are made by the defendants as allegedly required by City of Richmond v. Croson"); cf. Complaint ¶ 28, App. 20 (federal regulations violate the Fourteenth and Fifteenth Amendments by requiring "the use of racial and gender preferences in the award of federally financed highway construction contracts, without any findings of past discrimination in the award of such contracts").
Although the petition for certiorari added an antecedent question challenging the use, under the Fifth and Fourteenth Amendments, of any standard below strict scrutiny to judge the constitutionality of the statutes under which respondents acted, I would not have entertained that question in this case. The statutory scheme must be treated as constitutional if Fullilove v. Klutznick, 448 U. S. 448 (1980), is applied, and petitioner did not identify any of the factual premises on which Fullilove rested as having disappeared since that case was decided.
As the Court's opinion explains in detail, the scheme in question provides financial incentives to general contractors to hire subcontractors who have been certified as disadvantaged business enterprises (DBE's) on the basis of certain race-based presumptions. See generally ante, at 206-208. These statutes (or the originals, of which the current ones are reenactments) have previously been justified as provid-
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