Rothe Development v. U.S. Department of Defense: Overcomplicating the Uncomplicated

Courts have provided a blueprint for federal agencies to justify racebased selection processes: these processes can pass strict scrutiny review if they are narrowly tailored to address established areas of prior discrimination.7 Enter Rothe Development v. United States Department of Defense.8 Rothe upended nearly twenty-five years of well-established jurisprudence with the proposition that using race as a factor does not make the consideration race-based.9 The Small Business Act's "8(a) program"-codified at 15 U.S.C. 637-gives special consideration to socially and economically disadvantaged contractors in the bidding process.10 Social disadvantage as defined in the act includes individuals who have been subjected to racial bias.11 8(a)'s definition of social disadvantage is clearly a race-based criterion, and as such the court should have applied strict scrutiny. For the purpose of preserving and promoting a competitive free enterprise economic system, Congress hereby declares that it is the continuing policy and responsibility of the Federal Government to use all practical means and to take such actions as are necessary, consistent with its needs and obligations and other essential considerations of national policy, to implement and coordinate all Federal department, agency, and instrumentality policies, programs, and activities in order to: foster the economic interests of small businesses; insure a competitive economic climate conducive to the development, growth and expansion of small businesses; establish incentives to assure that adequate capital and other resources at competitive prices are available to small businesses; reduce the concentration of economic resources and expand competition; and provide an opportunity for entrepreneurship, inventiveness, and the creation and growth of small businesses.14 This statute seeks to promote the viability of small businesses by providing financial assistance, including by encouraging investment in small businesses.15 The Small Business Administration (SBA) was created by 15 U.S.C. 633 as the agency responsible for these obligations.16 The stated intent of the program aligns well with popular statistics provided by the SBA: one 2016 report indicates that small businesses with less than 500 employees constitute 99.9 percent of all firms in the United States, 97.7 percent of all U.S exporting firms, and 48 percent of all employees in the private sector.17 The SBA guarantees loans, operates programs intended to