On the recordMarch 5, 1998
There may be many arguments against the DBE, but I must say that your weakest one is this so-called unconstitutional argument. We all know about the constitutionality issue. In 1995, the Supreme Court handed down a decision in Adarand v. Pena. In Adarand, the justices specifically said that federal affirmative action programs are not unconstitutional. As long as the programs meet a compelling governmental interest and are narrowly tailored, then they can pass constitutional muster. Now, US District Judge Kane, to whom the case was remanded, ended up holding that part of the DOT regulations were unconstitutional on the grounds they were not narrowly tailored. But that is going to be corrected under the new regulations that are due out this spring. So as I say, of all your arguments, that really is the weakest. As a matter of fact, I will give you an opportunity to jettison that argument, if you want.
Source
govinfo.gov
