II. PUBLIC ACCOMMODATIONS A. ANALYSIS OF TITLE II Title II theoretically is based on two constitutional grounds. Enumerated private business establishments are covered (1) if they affect interstate commerce, or (2) if segregation is "supported" by State action. The word "supported" is defined as meaning that segregation (1) "is carried on under color of law, statute, ordinance, regulations, customs, or usage," or (2) is required, fostered, or encouraged by action of a State Private businesses included are: 1. Lodgings, except an owner-occupied establishment with less than six rooms; 2. Eating establishments, and gasoline stations if interstate customers are served or if a substantial protion of products sold has moved in interstate commerce; 3. Places of amusement, if the performers or films have moved in interstate commerce; 4. Any retail establishment in which one of the foregoing is located, or any retail establishment located in any of the foregoing; and 5. Any establishment or place if segregation is required by law or order of a State. If any person seeking to exercise his rights under this title is intimidated or punished, either he or the Attorney General may institute a suit for injunctive relief. Such a suit may be brought when any person is about to engage" in any act of or any threat or attempt at intimidation or punishment. While the Attorney General is directed before bringing a suit to notify county, Federal, or State authorities and attempt to resolve the controversy, if he files a certificate with the court that this would cause unnecessary delay, he can proceed with the suit forthwith. The doctrine of exhaustion of legal and administrative remedies at the State level is abolished. While an apparent effort is made in section 205(b) to avoid Federal preemption criticism to any degree in which State civil rights laws are inconsistent with this title, they are by express language preempted and nullified by the Federal statute. B. THE INTERSTATE COMMERCE CLAUSE As stated above, one of the two constitutional bases upon which title II is sought to be predicated is the interstate commerce clause. That Congress over the years has broadened the scope and extended the thrust of that clause far beyond what the authors of the Constitution intended cannot be disputed. However, the courts have upheld the Congress only when its statutes dealt directly with people or goods moving in or intended to move in commerce crossing State lines. Title II does not so confine itself. Lodging establishments are covered, whether or not their guests have traveled or intend to travel across State lines; the bill makes reference only to "transient guests." Until 1959, even the NLRB did not claim jurisdiction under the interstate commerce clause over such establishments, and jurisdiction was asserted then only with respect to hotels grossing more than $500,000 under the theory that the volume of business was a yardstick to the quantum of interstate activity. As late as 1961, Congress refused to extend the Fair Labor Standards Act to hotels and motels on the ground that they are engaged primarily in intrastate rather than interstate commerce. Eating establishments and gasoline stations are covered by this title, and some effort has been made to tie this coverage to interstate activity. However, this constitutes an expansion of the interstate commerce umbrella far beyond what Congress so far has been willing to make. Congress has not extended the antitrust laws or the labor laws to the establishments this bill would cover. Congress has exempted eating establishments from the Fair Labor Standards Act, while gasoline stations were later covered only when the annual volume of business exceeds $250,000. Prior to the establishment of that yardstick the courts specifically refused to sustain coverage merely because the station served interstate motorists. Dial v. Hi Lewis Oil Co. 99 F. Supp. 118 (1951). Places of amusement are covered by this title. We recognize that the Supreme Court has repeatedly ruled that segregation has an adverse impact on interstate commerce with respect to professional athletic contests, including specifically football, boxing, and basketball games. The courts have never made the same finding with reference to nonprofessional intercollegiate and interscholastic contests. Perhaps this bill is not intended to cover such, but the language is so broad and so imprecise as to lend itself to a possible interpretation of such coverage. We also recognize that the courts have brought motion picture theaters within the coverage of the Sherman Act. However, all of the decided cases involved conspiracies among large industrial corporations located in different States, which conspiracies were designed to restrain the operation of the movie industry in its interstate capacity. U.S. v. Crescent Amusement Co. (323 U.S. 173 (1944)); U.S. v. Paramount Pictures (334 U.S. 10 (1947)); U.S. v. Griffith (334 U.S. 100 (1947)). Although Congress has been unwilling to include movie theaters. under the interstate commerce concept of the Fair Labor Standards Act, this bill would cover every remote motion picture theater in every isolated hamlet simply because the film it screens was at some time transported across State lines. By the same process of reasoning the shoeshine boy could be said to be involved in interstate commerce because the shoe polish he uses was manufactured in another State. If the reach of the interstate commerce clause is to be extended to such lengths, then there is no longer any such thing as intrastate commerce. Having named these three categories of private business establishments, the bill adds a "catchall" category. Any retail establishment in which one of the three foregoing categories of business places is located, or any retail establishment located in any of those three categories is covered. Ergo, if a lunch counter is located in a drugstore or a department store, the entire store is covered. If a doctor or lawyer has an office in a hotel building, he is covered. Again, even if we assume that Congress has the power to legislate with respect to some of these business establishments in some of these three categories (which we are not willing to concede), still prudence would dictate the exercise of legislative restraint. C. THE 14TH AMENDMENT The second constitutional base upon which title II is sought to be predicated under section 201 (d) is the 14th amendment. On October 15, 1883, the Supreme Court, by an 8 to 1 vote, rendered decisions in five cases which have come to be known as The Civil Rights Cases. Involved was the interpretation of the act of 1875 entitled, "An act to protect all citizens in their civil and legal rights" (18 Stat. L. 335). The defendants had been indicted for violations of that act in that they refused service in their hotels and theaters to Negroes. The Court ruled that the equal protection clause of the 14th amendment does not relate to the private conduct of private individuals in their private places of business but only to action by a State, some arm of the State or some State official acting under color of State or local law. The essence of this decision has been repeatedly reaffirmed by the Federal courts, including the Supreme Court as late as 1961. Williams v. Howard Johnson's Restaurants (268 F. 2d 845 (1959)); Slack v. Atlantic White Tower System (284 F. 2d 746 (1960)); Burton v. Wilington Parking Authority (365 U.S. 715 (1961)). What Mr. Justice Harlan, in a recent dissenting opinion, had to say on this point is worth repeating here: * An individual's right to restrict the use of his property ** lies beyond the reach of the 14th amendment. Freedom of the individual to choose his associates or his neighbors; to use and dispose of his property as he sees fit; to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from Government interference. We realize that there are those, including Mr. Justice Douglas, who feel that the granting of a State franchise or a city or county license to private business firms, or the use of State and local police officers to protect the business and property of such firms, constitutes State action within the meaning of the 14th amendment Those who feel that human rights in property constitute an essential thread in the American fabric of individual liberty can never accept such specious reasoning, and unless the Congress is prepared to upset the decisions the Supreme Court has renderd over the last 80 years, the public accommodations section of this bill cannot be constitutionally based on the 14th amendment. D. MRS. MURPHY'S ROOMINGHOUSE Excepted from coverage under both the interstate commerce concept and the 14th amendment concept is an owner-occupied lodging house with five or less rooms. During the Attorney General's testimony before the full committee, he was asked on what rationale, legal or moral, this exemption was based. His reply was that the "relationship" in such establishments was primarily social rather than commercial. This indicates that coverage of lodging establishments is intended to be based on the interstate commerce clause and that Congress has power to make exemptions in such coverage. Assuming that Congress has such power, should Congress exercise such power? Should one private businessman with six rooms to let be subject to a lawsuit when he denies accommodations to a Negro while his competitor next door does so with impunity? If morality is involved, why is it moral for one businessman to discriminate and immoral for another? But the inconsistency is even more aggravated. In answer to another question, the Attorney General said that while a 5-room roominghouse would be exempt, a boardinghouse serving five diners would be covered. Is it legal or moral to discriminate in the renting of rooms but not in the serving of food? If coverage of lodging establishments is based on the 14th amendment rather than the interstate commerce clause, then surely there is no legal justification for an exemption. How can there be equality under the equal protection clause of the 14th amendment when the clause itself is applied unequally? And yet, we believe that these very exemptions are themselves the best possible evidence, indeed a confession, of the impracticability of extending Federal control to small localized private business enterprises, commanding private property regulation and compulsory customer acceptance by the businessman while leaving the customer free to choose the business establishment he patronizes. III. SUITS BY THE GOVERNMENT UNDER THE EQUAL PROTECTION CLAUSE A. SUITS BY THE ATTORNEY GENERAL It is important to recognize that this title is divided into two parts. The first concerns suits instituted by the Attorney General and the second concerns suits instituted by private citizens in which the Attorney General is authorized to intervene. The Attorney General is empowered to initiate suits to compel the desegregation of any public facility "owned, operated, or managed" by or on behalf of a State. (In purpose and effect, this is similar to the power to initiate suits to compel desegregation in schools and colleges granted to the Attorney General in title IV, and the power granted the Attorney General in the public accommodation provision of title II, and accordingly the comments made here are applicable to these titles as well.) We have no difficulty understanding the words "owned" or operated." We do have trouble understanding the import of the word "managed." What does it mean? Surely, it means something more than "owned" or "operated." Does it mean regulation? All public facilities which are licensed or franchised by a State, including public utilities, radio and TV stations and private, intrastate transportation companies, are regulated by the State. Is the Attorney General's power to institute suits intended to reach licensed business firms regulated by the State? If so, then the public accommodations provisions of this legislation are not confined to those business categories enumerated in title II. B. INTERVENTION IN INDIVIDUAL SUITS The second part of this title empowers the Attorney General to "intervene" in any suit instituted by an individual citizen charging denial of equal protection of the laws on account of race, and is broader in application than title III of the 1957 bill which the Senate deleted from the bill. The inventory of the different kinds of such suits is too long to recite. Suffice it to say that the inventory would include suits charging racial discrimination in local elections, legislative apportionment, civil service employment, composition of grand juries and petit juries in criminal trials, etc. Indeed, if a Negro were arrested for unlawful conduct as a member of a violent mob, he could petition a Federal district court for a writ of habeas corpus on the grounds that he had been denied equal protection of the laws on account of his race, and the Attorney General could intervene as a party in the proceeding. The Attorney General objected to title III as it appeared in the subcommittee bill on the grounds that it vested too much power in his hands and interjected the Department of Justice too far into too many fields of litigation. The amended version of title III does no less. Moreover, the present version makes the Attorney General a free lawyer for private litigants in civil litigation at the expense of the taxpayers in suits against some of these same taxpayers. Defendants in these suits, of course, must pay for their own lawyers, after having paid taxes to pay the costs of the Government's suits. IV. CUT OFF THE FUNDS In its April 1963 report, the Civil Rights Commission recommended that the President seek power to cancel or suspend Federal aid funds to States which fail to "comply with the Constitution and laws of the United States." At his April 17 press conference, the President was asked to comment on that recommendation. In response the President said, "I don't have the power to cut off aid in a general way as was proposed by the Civil Rights Commission, and I would think it would probably be unwise to give the President of the United States that kind of power * Title VI of this bill gives the President "that kind of power" and we share the President's feelings that it is "unwise." Assuming, as the Supreme Court has said, that "what the Federal Government subsidizes it can control," should the Federal Government, acting. through the executive branch, be vested with control powers to terminate or suspend by administrative fiat programs of financial assistance which the legislative branch has authorized and funded? True, this bill makes provision for judicial review of agency actions upon the demand of the State or individual aggrieved by such actions. However, agency action will have been taken, the funds will have been cut off, and the State and its citizens will have already been injured before any judicial determination of racial discrimination has been made. The cart is before the horse. Why should not the judicial determination be made first, and why should not the burden of bringing the suit rest upon the Federal Government rather than the State government or its citizens? Surely the accused should not be punished until guilt has been established under the rules of evidence and constitutional safeguards which our American system of jurisprudence provides. It will be seen that the judicial review authorized by this legislation (as distinguished from an original judicial proceeding) is keyed to the Administrative Procedure Act. This entails at least two pertinent consequences. First, under the Administrative Procedure Act, the |