Senator JAVITS. In other words, it is the intention of the Department to utilize whatever influence it may have in this way fully in support of its order; is that right? Mr. HENNING. Yes; we have no intention to harass or humiliate the guilty, but certainly this is a matter of public information and public property. Senator JAVITS. And you would use it that way? Mr. HENNING. We would use it that way in the proper sense, again, without the process of vengeance or humiliation. Senator JAVITS. But, Mr. Henning, you would not for a moment equate the effectiveness of what you are doing with a provision of law which would conceivably be incorporated in an fair employment practice commission bill. Mr. HENNING. Not for one moment. Senator CLARK. Before you go, Mr. Secretary, I would like to raise a question of constitutionality with you. This is a matter which is bound to be raised during the course of our consideration of this bill. Have you prepared any memorandum of brief on this matter? Have you been in touch with the Department of Justice? Mr. HENNING. The Solicitor's Office has prepared a review of the constitutionality question. Mr. Robertson can speak to that. Mr. ROBERTSON. Senator, in answer to your question, the Solicitor's Office of the Department of Labor has prepared a very informal, not a legal brief type, memorandum commenting upon the possible constitutional attacks that might be made upon this type of legislation. It has concluded that in the light of similar attacks made upon the National Labor Relations Act, whose basic procedures are similar to the bills now being considered, and in the light of a similar attack upon the Fair Labor Standards Act, which is in a somewhat comparable area, there is no serious constitutional issue which could be effectively raised on this legislation. Senator CLARK. Are you in a position to make that study available to the committee, or would you like a little time to sharpen it up? Mr. ROBERTSON. I am sure, Senator, that in its present form it is so informal that it probably would not do any particular good in exposing it because I am sure it can be embellished, enlarged, and tightened. Senator CLARK. It seems to me, I wonder if my colleagues would agree, that it is quite important to have a definitive brief on the constitutionality of this proposed legislation not only from the thought of labor but I would hope concurred in by the Department of Justice. I am going to ask you gentlemen to take the initiative in seeing to it that we do get such a constitutional presentation at the earliest possible moment, in formal shape. Senator JAVITS. I hope, too, that the memorandum will deal with the constitutional basis in terms of the commerce clause and any other clause, such as the 14th amendment, which you think might be applicable, because we are going to be faced, I think, in regard to every piece of civil rights legislation with this question about the applicability of the commerce clause or the applicability of the 14th amendment. Personally I don't see where the 14th amendment would fit here, but nonetheless the question should be dealt with. The prevailing view seems now to be to base civil rights laws on every aspect of the Constitution which will sustain them as, for example, in the case of public accommodations section, on both the commerce clause and the 14th amendment. (Subsequently, the following communication and memorandum was submitted:) Hon. JOSEPH S. CLARK, U.S. DEPARTMENT OF LABOR, OFFICE OF THE SECRETARY, Chairman, Subcommittee on Employment and Manpower, Committee on Labor and Public Welfare, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: During the course of Under Secretary Henning's testimony on fair employment practices legislation before the subcommittee on July 24, the Department of Labor was requested to prepare a memorandum on the constitutionality of the fair employment practices bills which were the subject matter of the hearing. I am attaching a memorandum prepared by the Department of Labor in accordance with this request. The memorandum concludes that pending legislation, as proposed in S. 773, 1210, 1211, and 1937, is a constitutional exercise of the interstate commerce power. Yours sincerely, W. WILLARD WIRTZ, CONSTITUTIONAL BASIS FOR LEGISLATION BEFORE THE 88TH CONGRESS TO PROHIBIT DISCRIMINATION IN EMPLOYMENT BECAUSE OF RACE, COLOR, ETC. This memorandum is addressed to the question of the constitutionality, under the commerce clause, of legislative proposals pending before the Senate Committee on Labor and Public Welfare, 88th Congress, to prohibit discrimination in employment because of race, religion, color, national origin, and ancestry. It is concluded that the constitutionality of such proposals is abundantly clear. There can be no doubt as to the power of the Congress to enact this type of legislation. The purpose of this memorandum is to point out the principal factors involved in a consideration of the question. I. THE POWER OF CONGRESS TO PROHIBIT DISCRIMINATION IN EMPLOYMENT UNDER THE COMMERCE CLAUSE The constitutional authority of the Congress, in the exercise of the commerce power, to enact legislation of this nature is plain beyond doubt. The Supreme Court has repeatedly upheld regulation of employment relationships based on this power. A. The extent, in general, of congressional power under the commerce clause It has long been settled that the commerce clause extends not only to the movement of goods in commerce, but also to those related activities preceding or following such movements. Thus, in United States v. Darby, 312 U.S. 100, the Supreme Court in upholding the validity of the Fair Labor Standards Act stated that "the power of Congress to regulate interstate commerce extends to the regulations through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the congressional power over it." In addition, the Court pointed out that this power "extends to those activities intrastate which so affect interstate commerce or the exercise of the power over it so as to make the regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power to regulate interstate commerce. ***The Sherman Act and the National Labor Relations Act are familiar examples of the exertion of the commerce power to prohibit or control activities wholly intrastate because of their effect on interstate commerce." Moreover, it must be borne in mind with reference to the constitutional basis of the Fair Labor Standards Act, which rests on "commerce" and the "production of goods for commerce," that the Supreme Court has several times empha sized that the Congress in providing this coverage stopped considerably short of the full reach of its constitutional power under the commerce clause (Kirschbaum v. Walling, 316 U.S. 516; Higgins v. Carr Bros. Co., 316 U.S. 564; Mitchell v. H. B. Zachry Co., 362 U.S. 310). In answer to the contention that an employer in an industry alleged to be "purely local in nature" should not be compelled to comply with the Fair Labor Standards Act, the Court declared that to the extent that his employees are engaged in commerce or in the production of goods for commerce, the employer is himself so engaged (Kirschbaum v. Walling, 316 U.S. 516; and see Mabee v. White Plains Publishing Co., 327 U.S. 178). It can therefore be authoritatively said that it is now well settled that the constitutional power extends to activities affecting commerce in any amount or volume not so minimal or sporadic as to fall within the doctrine of de minimis non curat lex. As the Supreme Court said in a National Labor Relations Act case, NLRB v. Fainblatt, 306 U.S. 1, the "power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small," because "commerce may be affected in the same manner and to the same extent in proportion to its volume, whether it be great or small." See also NLRB v. Denver Bldg. & Constr. Tr. Council, 341 U.S. 675; Carpenters Union v. NLRB, 341 U.S. 707. And in NLRB v. Stoller, 207 F. 2d 305 (C.A. 9), certiorari denied. 347 U.S. 919, the National Labor Relations Act was held applicable to a local dry cleaner who purchased $12,000 worth of supplies from outside the State, the Court holding that this amount "was not so insignificant as to come within the rule de minimis non curat lex." Further, it must be borne in mind that the congressional power to regulate conditions of employment is not limited to those situations where the producer, seller, or furnisher of goods or services himself places the goods or services which he produces, sells, or furnishes in the channels of interstate commerce. This power also extends, for example, to the retail distribution of goods which have moved across State lines before they reach the retailer. Thus the National Labor Relations Act has exclusive jurisdiction with respect to labor relations problems of retailers handling such goods, even though all their sales are local. See Amalgamated Meat Cutters and Butcher Workmen of America v. Fairlawn Meats, Inc., 353 U.S. 20 (three retail meat markets, all of whose sales were intrastate but whose out-of-State purchases totaled slightly over one-ninth of total purchases); San Diego Building Trades Council v. Garmon, 353 U.S. 26 (two retail lumber yards whose out-of-State purchases totaled $250,000); Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (retail car dealer purchasing from local General Motors warehouse autos and parts manufactured out of State). The authority of Congress to exercise power with respect to articles which "have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce" is also settled. In United States v. Sullivan, 332 U.S. 689, a druggist was convicted of failure to comply with labeling requirements for sulfathiazole which was sold to customers after it had moved in commerce. A recent exercise by Congress of this authority is Public Law 85-506 requiring certain information for prospective purchasers to be kept posted on new automobiles prior to their sale to the ultimate consumer. And, of course, another major example of the exercise of this power was the extension of Fair Labor Standards Act coverage, by the amendments of 1961, to certain retail establishments. Finally, it is also thoroughly settled that the question whether "the conduct of an enterprise affects commerce among the States is a matter of practical judgment." and that the "exercise of this practical judgment the Constitution entrusts primarily and very largely to the Congress" (Polish Alliance v. Labor Board, 322 U.S. 643). Under these principles, there is no doubt that a practical judgment by the Congress that discrimination in employment because of race or color has a substantial impact on commerce would be upheld by the courts. Such findings are, of course, contained in the pending bills on this subject. B. Congressional power under the commerce clause in the field of employment relations The areas in which the Congress has taken legislative action under the commerce clause by regulatory and/or criminal laws are legion. Any attempt to list them would unduly lengthen this memorandum. Attention should be directed, however, to some of the statutes most closely akin to the proposal here involved, namely, those which deal with employer-employee relationships. The courts have often and consistently upheld the power of Congress to regulate activities in this area which affect interstate or foreign commerce. Thus in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1, the Court said (at p. 33): "* * * Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. ***” In similar vein, the Court spoke as follows respecting discrimination which infringes on the right to work free from racial discrimination in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (at p. 561): *** The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discrimination against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organization or association. Race discrimination by an employer may reasonably be deemed more unfair and less excusable than discrimination against workers on the ground of union affiliation. * * *” The Fair Labor Standards Act, of course, was enacted for the purpose of regulating various conditions of work such as wages, hours, child labor and the employment of learners and handicapped persons. This regulation is permitted because of the effect on interstate commerce of labor conditions in the production of goods for such commerce (United States v. Darby, supra). The National Labor Relations Act was enacted to prohibit engaging in unfair labor practices as therein defined. This statute relies on the term "affecting commerce" (as applied to unfair labor practices) to define the reach of Federal regulation, and it too has been held constitutional (NLRB v. Jones & Laughlin Steel Corporation, supra). There the Court stated that the actions covered by this law are not immune from regulation because they grow out of labor disputes since "it is the effect on commerce, not the source of the injury, which is the criterion" (at p. 32). This principle is, of course, equally applicable to the proposed legislation here under consideration. Relying upon the commerce clause, the Congress has also enacted the Railway Labor Act, regulating labor relations between the railroads and their employees. The Supreme Court upheld the constitutionality of this law in Texas & New Orleans R. R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548. In Steele v. Louisville and Nashville R. R. Co., 323 U.S. 192, the Court further ruled that a union which is the exclusive bargaining representative under the Railway Labor Act has an obligation not to discriminate on the basis of race, notwithstanding a collective bargaining contract providing for such discrimination. There the Court stated the point to be decided as follows (at p. 193): "The question is whether the Railway Labor Act imposes on a labor organization, acting by authority of the State as the exclusive bargaining representative of a craft or class of railway employees, the duty to represent all the employees in the craft without discrimination because of their race, and, if so, whether the courts have jurisdiction to protect the minority of the craft or class from the violation of such obligation." Under the Railway Labor Act the Brotherhood of Locomotive Firemen and Enginemen was the exclusive representative of the craft for purposes of bargaining. Negroes were excluded from membership in agreements with the railway company providing that vacancies as they occurred should be filled by white men, and restricting the seniority rights of Negro firemen. As a result Stelle, who was a Negro fireman, lost a substantial amount of time, and was assigned to harder and less remunerative work. He sought injunctive relief which the Alabama courts denied. In reversing, the Supreme Court held that the agreements were violative of the terms of the act, which were held to require that the labor organization, chosen as provided in the act "to be the representative of the craft or class of employees is thus chosen to represent all of its members, regardless of their union affiliations or want of them ***. Unless the labor union representing a craft owes some duty to represent nonunion members of the craft, at least to the extent of not discriminating against them as such in contracts which it makes as representative, the minority would be left with no means of protecting their interests, or, indeed, their right to earn a livelihood by pursuing the occupation in which they are employed. * * * Without attempting to mark the allowable limits of differences in the terms of contracts based on differences of conditions to which they apply, it is enough for present purposes to say that the statutory power to represent a craft and to make contracts as to wages, hours, and working conditions does not include the authority to make anong members of the craft discriminations not based on such relevant differences. Here the discriminations based on race alone are obviously irrelevant and invidious." In a concurring opinion Mr. Justice Murphy went somewhat further: "The economic discrimination against Negroes practiced by the brotherhood and the railroad under color of congressional authority raises a grave constitutional question which should be squarely faced. The utter disregard for the dignity and the well-being of colored citizens shown by this record is so pronounced as to demand the invocation of constitutional condemnation. To decide the case and analyze the statute solely upon the basis of legal niceties, while remaining mute and placid as to the obvious and oppressive deprivation of constitutional guarantees, is to make the judicial function something less than it should be. The constitutional problem inherent in this instance is clear ***. But it cannot be assumed that Congress meant to authorize the representative to act so as to ignore the rights guaranteed by the Constitution. Otherwise the act would bear the stigma of unconstitutionality under the fifth amendment in this respect. For that reason I am willing to read the statute as not permitting or allowing any action by the bargaining representative in the exercise of its delegated powers which would in effect violate the constitutional rights of individuals. If the Court's construction of the statute rests upon this basis, I agree. But I am not sure that such is the basis. *** The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed, or color. A sound democracy cannot allow such discrimination to go unchallenged. Racism is far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation." Another extremely important case is Railway Mail Assn. v. Corsi, 326 U.S. 88, which it appears should logically be considered at this point even though it did not involve the commerce clause. There the Supreme Court unanimously upheld a New York law which forbade labor organizations from denying membership or equal protection to any person because of race, creed, or color. The association was an organization of postal clerks which limited its membership to persons of the Caucasian race and native American Indians. It claimed that it was not a labor organization under the law and that if it was, the sections involved violated the due process and equal protection clauses of the 14th amendment and were in conflict with the Federal power over post offices and post roads. Both issues in question were decided against the association. The opinion, written by Mr. Justice Reed, states that: "We have here a prohibition of discrimination in membership or union services on account of race, creed, or color. A judicial determination that such legislation violated the 14th amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent State legislation designed to perpetuate discrimination on the basis of race or color. We see no constitutional basis for the contention that a State cannot protect workers from exclusion solely on the basis of race, color, or creed by an organization functioning under the protection of the State, which holds itself out to represent the general business needs of the employees." Mr. Justice Frankfurter, in a concurring opinion, used broader and more emphatic language: “*** it is urged that the Due Process Clause of the 14th amendment precludes the State of New York from prohibiting racial and religious discrimination against those seeking employment. Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt. To use the 14th amendment as a sword against such State power would stultify the amendment. Certainly the insistence by individuals on their private prejudices as to race, color, or creed, in relations like those now before us, ought not to have a higher constitutional |