A Writ of Certiorari was denied by the U.S. Supreme Court in Rothe v. Department of Defense/SBA. In short, the U.S. Supreme Court will not hear the Constitutional challenge to the 8(a) statute. There was no dissenting opinion written disagreeing with the denial, as is sometimes done. For instance, in the attachment, where Rothe cert was denied on page two, further along there is a dissenting opinion as to the denial of another case. This is just a flat denial and the DC Circ. Court of Appeals judgment stands.
This is a big win for the 8(a) Program in the following ways. Both Rothe and the DOJ had argued that this case was subject to strict scrutiny as it applied to minorities. As this was a Constitutional challenge to the statute, this was taken very seriously and strict scrutiny is the highest standard of judicial review and subject to closest judicial examination of any program that is race based. The indigenous people of the United States, Native Americans, Alaska Natives, and Native Hawaiians (which were defined as Native Americans in the brief), through their respective organizations, as well as Alaska Congressman Don Young, argued that rational review applied. Rational review is the lowest standard of judicial review and it is up to the plaintiff to demonstrate that there is no good reason for the program (not a single justification). Stepping away somewhat from what DOJ and Rothe argued, rational review is what the DC Circuit Court of Appeals applied as the standard of review and it now stands as the law of the land. In short, the 8(a) Program survived rational review, as most programs do.
As you may recall, the DC Circuit Court of Appeals, Judge Pillard writing for the Court, evaluated whether or not the 8(a) Program was a racial classification subject to strict scrutiny. The Court determined that the statute (statute is facial challenge-regulations are an as applied challenge) is not race based. In so finding, the Court looked to the explicit language of the statute and although the findings of the statute may indicate a racial preference, findings are like a preamble and not binding. Rather, the Court found that the operating language of the statute did not create a racial presumption. Indeed, the Court found, Congress affirmatively choose to jettison an express racial presumption that it considered and dropped. The Court found that if Congress had wanted to enact a racially presumptive statute, it could have done so expressly, like it did in other cases, not the roundabout way it might have done so in this case. Moreover, the Court also found that the 8(a) statute was enacted before strict scrutiny applied to racial classifications, so Congress was not trying to covertly do what it could not do outright.
As one of the amici authors on the correct side of this case, I am proud to share in this team victory.