From Judge Clifton Corker’s opinion today in Ultima Servs. Corp. v. U.S. Dep’t of Agric. (E.D. Tenn.):
This case concerns whether, under the Fifth Amendment’s guarantee of equal protection, Defendants the United States’ Department of Agriculture (“USDA”) and the Small Business Administration (“SBA”) may use a “rebuttable presumption” of social disadvantage for certain minority groups to qualify them for inclusion in a federal program that awards government contracts on a preferred basis to businesses owned by individuals in those minority groups.
The court generally answers this “no”; here’s an excerpt, though if you’re interested in the details you should read the whole opinion:
“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor (2013); see also Bolling v. Sharpe (1954); Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (“The Fifth Amendment, of course, does not itself contain a guarantee of equal protection, but instead incorporates, as against the federal government, the Equal Protection Clause of the Fourteenth Amendment.”). Courts, therefore, “evaluate equal protection claims against the federal government under the Fifth Amendment just as [they] would evaluate equal protection claims against state and local governments under the Fourteenth Amendment.” …
To satisfy the compelling-interest prong [of the strict scrutiny applicable to race classifications], the government must both identify a compelling interest and provide evidentiary support concerning the need for the proposed remedial action. The Supreme Court has held that the government has a compelling interest in “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” Students for Fair Admissions, Inc.Additionally, the government must present goals that are “sufficiently coherent for purposes of strict scrutiny.”