NOTICE: This opinion is subject to formal revision before publication SUPREME COURT OF THE UNITED STATES MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion in which MR. JUSTICE WHITE and MR. JUSTICE POWELL joined. We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups. 441 U. S. 960. I In May 1977, Congress enacted the Public Works Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116, which amended the Local Public Works Capital Development and Investment Act of 1976, Pub. L. 94-369, 90 Stat. 999. The 1977 amendments authorized an additional $4 billion appropriation for federal grants to be made by the Secretary of Commerce, acting through the Economic Development Administration (EDA), to state and local governmental entities for use in local public works projects. Among the changes made was the addition of the provision that has become the focus of this litigation. Section 103 (f) (2) of the 1977 Act, referred to 2 FULLILOVE v. KLUTZNICK as the "minority business enterprise" or "MBE" provision, requires that: 1 "Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term "minority business enterprise" means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." In late May 1977, the Secretary promulgated regulations governing administration of the grant program which were amended two months later.2 In August 1977, the EDA issued guidelines supplementing the statute and regulations with respect to minority business participation in local public works grants, and in October 1977, the EDA issued a technical bulletin promulgating detailed instructions and information to assist grantees and their contractors in meeting the 10% MBE requirement.* 191 Stat. 116, 42 U. S. C. (1976 ed., Supp. II) § 6705 (f) (2). 2 42 Fed. Reg. 27432 (1977), as amended by 42 Fed. Reg. 35822 (1977); 13 CFR part 317 (1978). U. S. Department of Commerce, Economic Development Administration, Local Public Works Program, Round II, Guidelines For 10% Minority Business Participation In LPW Grants (1977); App. 156a-167a. U. S. Department of Commerce, Economic Development Administration, EDA Minority Enterprise (MBE) Technical Bulletin (Additional Assistance and Information Available to Grantees and Their Contractors In Meeting The 10% MBE Requirement) (1977); App. 129a-155a. FULLILOVE v. KLUTZNICK 3 On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Petitioners are several associations of construction contractors and subcontractors, and a firm engaged in heating, ventilation and air conditioning work. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement and that the MBE provision on its face violated the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Due Process Clause of the Fifth Amendment, and various statutory antidiscrimination provisions." After a hearing held the day the complaint was filed, the District Court denied a requested temporary restraining order and scheduled the matter for an expedited hearing on the merits. On December 19, 1977, the District Court issued a memorandum opinion upholding the validity of the MBE program and denying the injunctive relief sought. Fullilove v. Kreps, 443 F. Supp. 253 (SDNY 1977). The United States Court of Appeals for the Second Circuit affirmed, 584 F. 2d 600 (CA2 1978), holding that "even under the most exacting standard of review the MBE provision passes constitutional muster." Id., at 603. Considered in the context of many years of governmental efforts to remedy past racial and ethnic discrimination, the court found it "difficult to imagine" any purpose for the program other than to remedy such discrimination. Id., at 605. In 16 Stat. 144, 42 U. S. C. § 1981; 17 Stat. 13, 42 U. S. C. § 1983; 12 Stat. 284, 17 Stat. 13, 42 U. S. C. § 1985; Title VI, § 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d; Title VII, § 701 et seq. of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. FULLILOVE v. KLUTZNICK its view, a number of factors contributed to the legitimacy of the MBE provision, most significant of which was the narrowed focus and limited extent of the statutory and administrative program, in size, impact and duration, id., at 607-608; the court looked also to the holdings of other courts of appeals and district courts that the MBE program was constitutional, id., at 608-609. It expressly rejected petitioners' contention that the 10% MBE requirement violated the equal protection guarantees of the Constitution." 584 F.2d, at 609. II The MBE provision was enacted as part of the Public Works Employment Act of 1977, which made various amendments to Title I of the Local Public Works Capital Development and Investment Act of 1976. The 1976 Act was intended as a short-term measure to alleviate the problem of national unemployment and to stimulate the national economy by assisting state and local governments to build • Ohio Contractors Association v. Economic Development Administration, 580 F. 2d 213 (CA6 1978); Constructors Association v. Kreps, 573 F. 2d 811 (CA3 1978); Rhode Island Chapter, Associated General Contractors v. Kreps, 450 F. Supp. 338 (RI 1978); Associated General Contractors v. Secretary of Commerce, No. 77-4218 (Kan. Dec. 19, 1977); Carolinas Branch, Associated General Contractors v. Kreps, 442 F. Supp. 392 (SC 1977); Ohio Contractors Assoc. v. Economic Development Administration, 452 F. Supp. 1013 (SD Ohio 1977); Montana Contractors' Association v. Secretary of Commerce, 439 F. Supp. 1331 (Mont. 1977); Florida East Coast Chapter v. Secretary of Commerce, No. 77-8351 (SD Fla. Nov. 3,. 1977); but see Associated General Contractors v. Secretary of Commerce, 441 F. Supp. 955 (CD Cal. 1977), vacated and remanded for consideration of mootness, 438 U. S. 909 (1978), on remand 459 F. Supp. 766 (CD Cal.), appeal docketed sub nom. Armistead v. Associated General Contractors of California, No. 78-1107. "Both the Court of Appeals and the District Court rejected petitioners' various statutory arguments without extended discussion. 584 F. 2d, at 608, n. 15; 443 F. Supp., at 262. FULLILOVE v. KLUTZNICK 5 needed public facilities. To accomplish these objectives, the Congress authorized the Secretary of Commerce, acting through the Economic Development Administration, to make grants to state and local governments for construction, renovation, repair or other improvement of local public works projects. The 1976 Act placed a number of restrictions on project eligibility designed to assure that federal monies were targeted to accomplish the legislative purposes.1o It established criteria to determine grant priorities and to apportion federal funds among political jurisdictions." Those criteria directed grant funds toward areas of high unemployment. The statute authorized the appropriation of up to $2 billion for a period ending in September 1977; 13 this appropriation was soon consumed by grants made under the program. 12 Early in 1977, Congress began consideration of expanded appropriations and amendments to the grant program. Under administration of the 1976 appropriation, referred to as "Round I" of the local public works program, applicants seeking some $25 billion in grants had competed for the $2 billion in available funds; of nearly 25,000 applications, only some 2,000 were granted." The results provoked widespread concern for the fairness of the allocation process.15 Because H. R. Rep. No. 94-1077, p. 2 (1976). The bill discussed in this report was accepted by the Conference Committee in preference to the Senate version. S. Conf. Rep. No. 94-939, p. 1 (1976); H. R. Conf. Rep. No. 94-1260, p. 1 (1976). 990 Stat. 999, 42 U. S. C. § 6702. 12 90 Stat. 1001, 42 U. S. C. § 6707 (c). 13 90 Stat. 1002, 42 U. S. C. § 6710. The actual appropriation of the full amount authorized was made several weeks later. Pub. L. 94–447, 90 Stat. 1497. 14 123 Cong. Rec. 81355 (Jan. 25, 1977) (remarks of Sen. Randolph). 15 See, e. g., Hearings on H. R. 11 and related bills before the Subcommittee on Economic Development of the House Committee on Public |