8(a) Program: Will Supreme Court Take Rothe’s Constitutionality Case?

The continuing legal battle over the constitutionality of the 8(a) program’s “socially disadvantaged” criteria may be on its way to the Supreme Court of the United States.

Last September, we covered the decision of the United States Court of Appeals for the D.C. Circuit in Rothe Development, Inc. v. United States Department of Defense, 836 F.3d 57 (D.C. Cir. 2016), where a two-judge majority of the court concluded the 8(a) program did not violate Rothe’s equal protection rights under the Due Process Clause of the Fifth Amendment by establishing a racial classification.

Now, Rothe has filed a Petition for Writ of Certiorari—a formal request that the Supreme Court review (and overturn) the D.C. Circuit’s decision.

By way of background, the main question in Rothe is whether the 8(a) program violates the Fifth Amendment by granting contracting preferences on the basis of race. One of the essential questions in resolving any equal protection challenge is determining the level of scrutiny to which the challenged law will be subjected. Judges can apply three different intensities of scrutiny: rational basis, intermediate, and strict. Think of these like low, medium, and high scrutiny.

Rational basis is the least intense of the scrutiny levels and applies to most laws. To survive a rational basis challenge, a law merely must bear some reasonable relation to a legitimate government interest. Needless to say, most laws reviewed under the “rational basis” test are upheld.

Strict scrutiny, on the other hand, is the most intense level of scrutiny. To survive a strict scrutiny review, the challenged law must be narrowly tailored to meet a compelling government interest. Strict scrutiny is typically applied when a statute is not race-neutral on its face. Many laws do not survive a strict scrutiny review.

In its September decision, the D.C. Circuit majority concluded the statute establishing the 8(a) program is race-neutral. As the court’s majority explained, “Section 8(a) uses facially race-neutral terms of eligibility to identify individual victims of discrimination, prejudice, or bias, without presuming that members of certain racial, ethnic, or cultural groups qualify as such.” Consequently, the D.C. Circuit concluded rational basis was the proper level of scrutiny to apply to the 8(a) statutes. Given the low bar set by rational basis review, the D.C. Circuit concluded the case met constitutional muster.

Rothe’s petition for Supreme Court review challenges the D.C. Circuit’s application of rational basis. Rothe argues that the D.C. Circuit should have reviewed the statute under strict scrutiny, and should have found the statute to violate the Fifth Amendment.

Rothe begins with the long-established principle that “drawing distinctions between citizens based on their race or ancestry is odious to a free people whose institutions are founded upon the doctrine of equality.” Rothe says that “the statutory provisions of the Section 8(a) program contain a paradigmatic racial classification because they distribute burdens and benefits on the basis of race.”

Rothe makes several arguments in support of its petition.

Rothe first argues the D.C. Circuit ignored the plain language of the statute, which Rothe says gives preferences to“’[s]ocially disadvantaged individuals’ based upon ‘their identity as a member of a group without regard to their individual qualities.’” Rothe contends the statute establishes membership in certain racial minority groups as being indicative of social disadvantage; for this reason, Rothe says, the statute is not race-neutral.

Rothe then takes issue with the D.C. Circuit’s holding that the portion of the statute identifying racial classifications was analogous to an unenforceable “preamble.” Rothe writes that the section of the statute containing this language “reads like a definitional section,” and was “voted on and passed” by Congress. Further, Rothe says, “a court should always review the entirety of a statute,” and the D.C. Circuit failed to do so.

Next, Rothe says that the D.C. Circuit erred by finding that the statute was race-neutral because non-minorities are also eligible for the 8(a) program. Rothe concedes that non-minorities can be admitted to the 8(a) program, but writes that members of minority groups “receive an advantage over non-minorities based on their race.” Rothe continues: “this Court applies strict scrutiny whenever the government uses race as a factor in distributing burdens and benefits, regardless of whether race is the sole factor.”

Rothe next dives into the legislative history of the 8(a) program, which Rothe says supports its position. For instance, Rothe writes that a 1978 House-Senate conference committee intended that “the primary beneficiaries of the program would be minorities.”

Finally, Rothe contends that the D.C. Circuit misapplied the doctrine of constitutional avoidance. The doctrine of constitutional avoidance counsels that when a statute is open to multiple reasonable interpretations, courts should select the interpretation that does not present a constitutional issue. Rothe alleges that Section 8(a) is not ambiguous and that the D.C. Circuit had to contort the statutory language to apply the constitutional avoidance doctrine. As such, application of the doctrine was improper and led to the incorrect conclusion.

Rothe concludes by arguing that its case is “an issue of nationwide importance.” Writes Rothe: “[t]here can be little doubt that government contracting is big business, even for small businesses.” Rothe notes that $16.6 billion in 8(a) contracts were awarded in 2015, and says that “when billions of dollars in government contracts are at stake, any preferential treatment has a nationwide, economic impact.”

Now the big question: will the Supreme Court take Rothe’s case? If the Court declines to take the case, the D.C. Circuit’s ruling will stand, solidifying the 8(a) program’s constitutionality–at least for now. But if the Court takes the case, anything is possible.

The raw numbers don’t look good for Rothe. As the Supreme Court’s website says, “[t]he Court receives approximately 7,000-8,000 petitions for a writ of certiorari each Term.  The Court grants and hears oral argument in about 80 cases.”

But Rothe’s chances are probably a little better than those numbers would suggest. Rothe’s case presents a constitutional question affecting billions of dollars in government spending. And as the Supreme Court showed in 2015 with Kingdomware, it’s not afraid to take on a major government contracting case.

Continue to check back at SmallGovCon as we keep an eye on the developments in Rothe.