GEE, Circuit Judge:
In February 1974, Kaiser Aluminum & Chemical Corporation entered into a collective bargaining agreement with United Steelworkers of America, AFL-CIO (USWA), that significantly altered eligibility for on-the-job training to enter craft positions in all Kaiser plants. In an effort to increase the number of minority workers in the craft families, the 1974 Labor Agreement removed the requirement of prior craft experience for on-the-job training and established an entrance ratio of one minority worker to one white worker until the percentage of minority craft workers roughly approximated the percentage of minority population in the area surrounding each plant. Eligibility for training still rested on plant seniority, but to implement their affirmative action goal it was necessary to establish dual seniority lists: for each two training vacancies, one black and one white employee would be selected on the basis of seniority within their respective racial groups.1 As predictable, black employees have been admitted to Kaiser’s on-the-job training program with less seniority than their white competitors. One unsuccessful white bidder working at Kaiser’s Gramercy, Louisiana, plant brought this class action on behalf of all persons employed by Kaiser at its Gramercy works who are members of the USWA Local 5702, who are not members of a minority group and who have applied for or were eligible to apply for on-the-job training programs since February 1, 1974. Mr. Weber alleged that by preferring black employees with less seniority for admission to on-the-job training, Kaiser and USWA were guilty of unlawful discrimination in violation of Title VII, 42 U.S.C. §§ 2000e-2 et seq. (1970). The district court agreed and granted a permanent injunction against further use of the 1974 training eligibility quota. Although the 1974 Labor Agreement applies to all Kaiser plants and similar agreements were enacted through the aluminum industry, these facts pertain only to Kaiser’s plant in Gramercy, Louisiana, and this action enjoined the use of the quota at that plant only. Kaiser and USWA, supported by numerous amici curiae,2 bring this appeal asking us to hold that their training quota, which they say is mandated by valid executive action, does not violate Title VII and is justified by past societal discrimination even in the absence of past employment discrimination here.
Affirmative Relief or Reverse Discrimination?
The case before this court today is unique in that the affirmative action complained of was not imposed by the judiciary; rather, this collective bargaining agreement was entered into to avoid future litigation and to comply with the threats of the Office of Federal Contract Compliance Programs (OFCC) conditioning federal contracts on appropriate affirmative action.3 The case [219]*219is also unique in that it presents a conflict between affirmative action dictated by the OFCC under Executive Order 11246 and preferential treatment prohibited by Title VII. In United States v. AIlegheny-Lud-lum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), Title VII and Executive Order 11246 dictated the same response to massive discriminatory practices throughout the steel industry, but the training quota adopted by Kaiser in response to Executive Order 11246 is flatly and literally prohibited by Title VII, § 703(d), which makes it unlawful to limit access to on-the-job training on the basis of race:
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d) (1970). Additionally, section 703(a) prohibits racial classifications in general,4 and section 703(j) specifies that the Act shall not require preferential treatment.5 But, of course, the issue here is not whether preferential treatment is required but whether it is forbidden.
When does preferential treatment become illegal reverse discrimination? The answer depends on the law involved, the nature of the affirmative action, and the factual circumstances of the prior discrimination.6 Federal courts have agreed that the “make whole” objective of Title VII7 permits and even requires affirmative relief when necessary to correct continuing inequalities created by past discriminatory em[220]*220ployment practices.8 In Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Court seems to have adopted this circuit’s “rightful-place” doctrine,9 authorizing fictional seniority in order to place the victims of discrimination in as good a place as they would have enjoyed absent discriminatory hiring practices.
Obviously merely to require [respondent] to hire the class three victim of discrimination falls far short of a “make whole” remedy. A concomitant award of the seniority credit he presumptively would have earned but for the wrongful treatment would also seem necessary in the absence of justification for denying that relief. Without an award of seniority dating from the time when he was dis-criminatorily refused employment, an individual who applies for and obtains employment as an OTR driver pursuant to the District Court’s order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits his inferiors, [footnotes omitted].
Id., 424 U.S. at 767-68, 96 S.Ct. at 1265-1266. The Court made it clear that an award of artificial seniority may not be denied on the ground that it conflicts with the economic interests of other employees.
[I]t is apparent that denial of seniority relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central “make-whole” objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where some scarce employment benefit is distributed among employees on the basis of their status in the seniority hierarchy. But, as we have said, there is nothing in the language of Title VII, or its legislative history, to show that Congress intended generally to bar this form of relief to victims of illegal discrimination ....
Id. at 774, 96 S.Ct. at 1269.
The Supreme Court has never approved the use of a quota remedy to overcome employment discrimination, but circuit courts have repeatedly sanctioned judicially imposed quotas in certain factual circumstances. Prior to the 1972 amendments to Title VII, our circuit approved such a quota. Local 53, International Ass’n of Heat & Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969). Accord, United States v. International Brotherhood of Electrical Workers, Local 38, 428 F.2d 144, 149-59 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); United States v. Sheetmetal Workers Local 36, 416 F.2d 123 (8th Cir. 1969). In 1972, a Senate amendment to overturn this case law and forbid the use of quota remedies was rejected two-to-one. Legislative History of Equal Employment Opportunity Act of 1972 at 1017, 1042-74, 1081, 1714-17 (1972). The bill amending Title VII in 1972 provided:
In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.
Subcom. on Labor of the Senate Com. on Labor and Public Welfare, Legislative History, supra at 1844. Since 1972, judicially [221]*221imposed quota remedies have been widely approved. United States v. International Union of Elevator Constructors Local 5, 538 F.2d 1012 (3d Cir. 1976); EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976); Boston NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir.) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). But our courts have not been unaware of the dangers of granting preferential treatment on the basis of race:
There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where compelling need for remedial action can be shown. • Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 931-32 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity. [footnotes omitted].
Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9,17-18 (1st Cir. 1973). Three circuits have refused to approve racial quotas when the factual circumstances of the past or present discrimination did not dictate such an extraordinary remedy. Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976); Chance v. Board of Examiners, supra; Watkins v. United Steelworkers of America Local 2369, 516 F.2d 41 (5th Cir. 1975).
Title VII and Executive Order 11246
Quotas imposed to achieve the “make whole” objective of Title VII rest on a presumption of some prior discrimination. There can be no basis for preferring minority workers if there has been no discriminatory act that displaced them from their “rightful place” in the employment scheme. Several circuits have noted this distinction, holding that quotas or preferential treatment merely to attain racial balance of the work force are unlawful, while quotas to correct past discriminatory practices are not. United States v. Wood, Wire & Metal Lath. International Union Local 46, 471 F.2d 408, 413 (2d Cir. 1973); Carter v. Gallagher, supra at 329; Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 173 n.47 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); United States v. Iron-workers Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); United States v. International Brotherhood of Electrical Workers Local 38, 428 F.2d 144, 149 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); Local 53, International Association of Heat & Frost I. & A. Workers v. Vogler, supra at 1052. But see EEOC v. American Telephone & Telegraph Co., 556 F.2d 167 (3d Cir. 1977); and Associated General Contractors of Massachusetts, Inc. v. Altshuler, supra (Executive Order 11246 may provide an alternative justification for racial quotas totally apart from any violation of Title VII).
Courts also have affirmed quota remedies imposed by federal affirmative action pro[222]*222grams under the impetus of Executive Order 11246 and comparable state affirmative action programs. Associated General Contractors of Massachusetts, Inc. v. Altshuler, supra; Contractors Association of Eastern Pennsylvania v. Secretary of Labor, supra (the Philadelphia Plan); Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907 (1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970) (the Cleveland Plan); Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J.1970) (the Newark Plan); Southern Illinois Builders Association v. Ogilvie, supra (the Illinois-Ogilvie Plan). The affirmative action program mandated by 41 C.F.R. § 60-2 (Revised Order No. 4) for nonconstruction contractors requires a “utilization” study to determine minority and female representation in the work force. Goals for hiring and promotion must be set to overcome any “underutilization” found to exist. The regulation then confuses things mightily by declaring that a goal shall not be considered a device for instituting quotas or reverse discrimination:
[T]he purpose of a contractor’s establishment and use of goals is to insure that he meet his affirmative action obligation. It is not intended and should not be used to discriminate against any applicant or employee because of race, color, religion, sex, or national origin.
41 C.F.R. § 60-2.30. Attempts to distinguish a numerical goal from a quota have proved illusory, and most such goals suggested by the OFCC can fairly be characterized as quotas.10
We must judge the legality of Kaiser’s training ratio in light of both Title VII, with its “make-whole” objective, and Executive Order 11246, with its mandate for affirmative action that does not itself discriminate.
1974 Labor Agreement
Petitioner Weber complains of Kaiser’s dual seniority system that permits black employees to be admitted to on-the-job training programs ahead of white employees with greater seniority. The offending portions of the 1974 Labor Agreement provide:
It is further agreed that the Joint Committee will specifically review the minority representation in the existing Trade, Craft and Assigned Maintenance classifications in the plants set forth below, and, where necessary, establish certain goals and timetables in order to achieve a desired minority ratio: [Gramercy works listed, among others].
As apprentice and craft jobs are to be filled, the contractual selection criteria shall be applied in reaching such goals; at a minimum, not less than one minority employee will enter for every nonminority employee entering until the goal is reached unless at a particular time there are insufficient available qualified minority candidates
1974 Labor Agreement, Addendum to Art. 9 dealing with seniority. The Joint Committee entered into a Memorandum of Understanding which established a goal of 39% minority representation in each craft family at the Kaiser Gramercy plant.11
The one-for-one ratio was then implemented to accomplish this goal.
In April, 1974, Kaiser offered bids for on-the-job training opportunities in the [223]*223craft families of instrument repairman, electrician and general repairman. Following the terms of the 1974 Labor Agreement, one black and one white employee were selected on the basis of seniority within their respective racial groups for the vacancies in the instrument repairman category. Similarly, two trainees, one black and one white, were selected for training in the electrician category, and five trainees, three of whom were black, were selected for the general repairman positions. In each of these three cases, the most senior man in his racial group was selected, but in each case one or more white employees not selected had greater seniority and would have been selected had the quota system not been in effect.
******
It has been admitted by Kaiser that members of minority groups with less seniority than Mr. Weber and other members of the class were selected by Kaiser for these programs specifically to meet the established goal of at least thirty-nine percent minority representation in each craft family.
Weber v. Kaiser Aluminum Corp., 415 F.Supp. 761, 764 (E.D.La.1976).
It is undeniable that the 1974 Labor Agreement’s one-for-one ratio for training eligibility discriminates on the basis of race. In McDonald v. Santa Fe Trails Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), the Court held that Title VII prohibits racial discrimination against white employees upon the same standards as would be applicable were they Negroes. 427 U.S. at 278-282, 96 S.Ct. at 2577-2578, 49 L.Ed.2d at 500-01. Accord Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (Title VII prohibits preferences for any groups, minority or majority).
The district court granted injunctive relief against the complained-of quota system on two grounds:
(1) Courts may establish affirmative action programs as a form of relief in Title VII cases, but when an employer and a union voluntarily adopt a quota system this violates Title VII.12 Quota systems must be imposed with great caution, and only the judiciary should be entrusted with fashioning and administering such relief.
(2) Courts would not mandate a preferential quota system in these circumstances where the preferred workers were not identifiable victims of unlawful hiring discrimination and where in fact there had been no past discrimination by the employer.
We disagree with the district court’s reasoning that what courts may force upon employers in the name of Title VII employers and unions may not voluntarily institute. In United States v. Allegheny-Lud-lum Industries, Inc., supra, which dealt with consent decrees eliminating patterns and practices of discrimination in the steel industry, this court emphasized that voluntary compliance in eliminating unfair employment practices is preferable to court action and that private settlement without litigation is the central theme of Title VII. See also Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 258 (5th Cir. 1974); Hutchings v. United States Industries, Inc., 428 F.2d 303, 309 (5th Cir. 1970); Culpepper v. Reynolds Metal Co., 421 F.2d 888, 891 (5th Cir. 1970); Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399, 402 (5th Cir. 1969); Oatis v. Crown Zellerbach, 398 F.2d 496, 498 (5th Cir. 1968). But there is strong authority to support the position that courts are not subject to the same restrictions as employers. Section 703, which defines unlawful employment practices, does not limit judicial remedies which are governed by the broad language of section 706(g) authorizing “such affirmative action as may be appropriate.”
[224]*224Local 5 contends, however, that the enforcement provisions in § 706(g) are in effect limited by the unlawful employment practices prohibitions in §§ 703(h) and (j). The short answer to that contention is that § 703 defines violations, not remedies.
United States v. International Union of Elevator Constructors Local 5, supra at 1019. In Franks v. Bowman Transportation Co., supra, the Supreme Court affirmed this view that the definitional section 703(h) does not limit relief otherwise appropriate under section 706(g). We need not now probe into the distinctions between court-ordered remedies and permissible remedies voluntarily hammered out in collective bargaining agreements because we affirm the district court’s opinion on the second ground that under the circumstances of this case the hiring ratio could not be approved even had it been judicially imposed.
No Prior Discrimination
[3-5] The district court found, and appellants all but concede,13 that Kaiser has not been guilty of any discriminatory hiring or promotion at its Gramercy plant:
It was also established by the testimony of Mr. English [Kaiser’s industrial relations superintendent at its Gramercy plant] that minority employees at the Gramercy plant accounted for only 14.8 percent of the total labor force at that plant, and that in an attempt to increase this percentage to conform more closely to the percentage of the general population of the community, Kaiser began to hire new employees “at the gate” on a “one white, one black” basis in 1969. The evidence further established that Kaiser had a no-discrimination hiring policy from the time its Gramercy plant opened in 1958, and that none of its black employees who were offered on-the-job training opportunities over more senior white employees pursuant to the 1974 Labor Agreement had been the subject of any prior employment discrimination by Kaiser.
With regard to craft positions, Mr. English testified that prior to 1974, only five blacks had been hired into these positions, making the black craft population only 2-2V2 percent of the total Gramercy plant craft population. Although this figure might suggest that Kaiser had discriminated against blacks when filling craft positions, Mr. English testified that prior to 1974, Kaiser had vigorously sought trained black craftsmen from the general community. Although its efforts to secure such trained employees included advertising in periodicals and newspapers published primarily for black subscribers, Kaiser found it difficult, if not impossible, to attract trained black craftsmen, (emphasis added).
415 F.Supp. at 764. In the absence of prior discrimination a racial quota loses its character as an equitable remedy and must be banned as an unlawful racial preference prohibited by Title VII, § 703(a) and (d). Title VII outlaws preferences for any group, minority or majority, if based on race or other impermissible classifications,14 but it does not outlaw preferences favoring victims of discrimination. A minority worker who has been kept from his rightful place by discriminatory hiring practices may be entitled to preferential treatment “not because he is Black, but because, and only to the extent that, he has been discri[225]*225minated against.” Chance v. Board of Examiners, supra at 999. If employees who have been arbitrarily favored are deprived of benefits capriciously conferred on them in order that those who were arbitrarily deprived may receive what they should, in fairness, have had to begin with, no law is violated. This is so even if both the class whose rights are restored and the class required to “move over” are defined by race — if the original arbitrariness was defined in that manner. And the reason is that no one is being favored or disfavored, advantaged or injured, under these circumstances because of race; rather, those who have been unjustly deprived receive their due and those who have been arbitrarily favored surrender some of the largesse capriciously conferred on them. That these consequences end by race is a mere incident of the fact that they began that way.
Appellants urge this court to approve the on-the-job training ratio not to correct past employment discrimination by Kaiser at this plant but to correct a lack of training blamed on past societal discrimination. For surely it is common knowledge that many blacks (and others) have suffered arbitrary discrimination in the society, discrimination still producing effects which they carry with them to the Gramercy plant and elsewhere. Our response is that unless a preference is enacted to restore employees to their rightful places within a particular employment scheme it is strictly forbidden by Title VII. Not all “but-for” consequences of racial discrimination warrant relief under Title VII. Cf. Local 189, United Papermakers & Paperworkers v. United States, supra at 988. Finding no victims of employment discrimination, the Eighth Circuit reversed a racial hiring quota designed to favor less qualified minority applicants over more qualified white applicants:
The fact that some unnamed and unknown White person in the distant past may, by reason of past racial discrimination in which the present applicant in no way participated, have received preference over some unidentified minority person with higher qualifications is no justification for discriminating against the present better qualified applicant upon the basis of race.
Carter v. Gallagher, supra at 325. Here we do not deal with minority workers less qualified as to skills;15 presumably each employee seeking admittance to on-the-job training is unskilled for the craft position he or she seeks. Rather, we are confronted with white employees who are more senior than selected black trainees. As noted at the outset, these dual seniority lists, one for black employees and one for white employees, are maintained only for purposes of selecting on-the-job trainees and do not reflect preferential treatment in layoff, recall, transfer assignments, working conditions or any other benefit. But the importance of seniority principles in allocating scarce opportunities such as training for advancement cannot be overlooked.16 And because we deal here solely with an effect of seniority, it is appropriate to draw the line for application of restorative justice at [226]*226the Gramercy plant, rather than at the larger universe of all Kaiser operations or indeed about society at large. Seniority is acquired at the plant and operates on a basis neither larger nor smaller than the plant. Whatever other effects societal discrimination may have, it has had — by the specific finding of the court below — no effect on the seniority of any party here. It is therefore inappropriate to meddle with any party’s seniority or with any perquisites attendant upon it, since none has obtained any unfair seniority advantage at the expense of any other. Here, unlike in Franks v. Bowman Transportation Co., supra, there has been no discriminatory refusal to hire and therefore, here, there is no occasion to restore any employee to his rightful place. Accord Watkins v. United Steelworkers of America Local 2369, 516 F.2d 41 (5th Cir. 1975) (a last-hired, first-fired seniority system resulting in the layoff of more blacks than whites is not discriminatory where the individuals who suffered the layoffs were in their rightful place and had never personally experienced prior employment discrimination); Chance v. Board of Examiners, supra (a last-hired, first-fired layoff plan which has never been discriminatory may not be suspended to permit black or Puerto Rican supervisors to keep their jobs in preference to a white supervisor with greater seniority). Where admissions to the craft on-the-job training programs are admittedly and purely functions of seniority and that seniority is untainted by prior discriminatory acts, the one-for-one ratio, whether designed by agreement between Kaiser and USWA or by order of court, has no foundation in restorative justice, and its preference for training minority workers thus violates Title VII. We concur in the district court’s opinion that however laudable the objective of training minority workers, Title VII clearly proscribes discriminating against majority workers:
Undoubtedly, the laudable objective of promoting job opportunities in our society for members of minority groups has been viewed as a justification for the discrimination against other individuals which almost certainly results from such programs. Prior to the effective date of the 1964 Civil Rights Act, employers may have been free, for whatever motivation, to engage in such discriminatory employment practices. Indeed, it well may be that employers should be permitted to discriminate in an otherwise illegal fashion in order to bring about a national social goal. This Court, however, is not sufficiently skilled in the art of sophistry to justify such discrimination by employers in light of the unequivocable prohibitions against racial discrimination against any individual contained in Sections 703(a) and (d) of the 1964 Act.
415 F.Supp. at 769 (original emphasis).
Executive Order 11246
Appellants contend that if this racial quota is not sanctioned by Title VII it is sanctioned by Executive Order 11246 and regulations issued by the Office of Federal Contract Compliance (OFCC) mandating affirmative action by all government contractors. Indeed, the district court found that the 1974 collective bargaining agreement reflected less of a desire on Kaiser’s part to train black craft workers than a self-interest in satisfying the OFCC in order to retain lucrative government contracts.
Appellees respond that because Kaiser has actively recruited black craft workers it has complied with the executive requirement of affirmative action and is not guilty of “underutilization.” They argue that, properly interpreted, Executive Order 11246 would not require a racial quota in these circumstances and that the OFCC improperly threatened the withdrawal of all federal contracts unless this racial preference was enacted.
Executive Order 11246, with its implied mandate for affirmative action on the part of those who would supply the government with goods or services, has been upheld as valid executive action. Contractors Association of Eastern Pennsylvania v. Secretary of Labor, supra at 166-71 (upholding the “Philadelphia Plan”); see also Farkas v. Texas Instruments, Inc., 375 F.2d 629 (5th [227]*227Cir.), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967). But executive orders may not override contradictory congressional expressions. In the famous challenge to executive power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), Justice Jackson divided executive orders into three categories: (1) those in which the President acts pursuant to express or implied authorization by Congress, as to which his authority is at a maximum; (2) those in which the President acts in the absence of congressional grant of authority and must rely upon his own independent powers; and (3) those in which executive action conflicts with the express or implied will of Congress and is most vulnerable to challenge.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system, [footnotes omitted].
343 U.S. at 638, 72 S.Ct. at 871. The Third Circuit first validated the Philadelphia Plan as valid executive action and then tested it for conflicts with congressional action, holding that “the Executive is bound by the express prohibitions of Title VII.” 442 F.2d at 171-72. The Third Circuit held that the general prohibition against discrimination found in sections 703(a), (h) and (j) did not prohibit the affirmative action imposed by the Philadelphia Plan, given a finding of prior exclusionary practices by the six trade unions controlling the work force.
Whether Kaiser has already met its affirmative action burden or not, we are unable to harmonize the more explicit language of section 703(d), which specifically prohibits racial classification in admission to on-the-job training programs, with the affirmative action imposed here. If Executive Order 11246 mandates a racial quota for admission to on-the-job training by Kaiser, in the absence of any prior hiring or promotion discrimination, the executive order must fall before this direct congressional prohibition.
We deny appellants relief, not unmindful of the delayed opportunities for advancement this will occasion many minority workers but equally aware of our duty, in enforcing Title VII, to respect the opportunities due to white workers as well. Whatever the merits of racial quotas — and the short-term and obvious benefits must not blind us to the seeds of racial animus such affirmative relief undeniably sows17 —Congress has forbidden racial preferences in admission to on-the-job training programs, and under the circumstances of this case we are not empowered by the equitable doctrine of restorative justice to ignore that proscription.
AFFIRMED.