Section 701(b) also declares it to be the purpose of Congress to insure the full "enjoyment by all persons of the rights, privileges and immunities secured and protected by the Constitution of the United States." The employers covered by the proposed legislation would ultimately be those having 25 or more employees. For the first 3 years after its effective date, title VII would cover those employers having a greater number of employees as prescribed in section 702(b). Also subject to this title would be employment agencies and labor organizations.

In the customary pattern of State and local fair employment legislation, title VII sets forth certain unlawful employment practices by employers, employment agencies and labor organizations. Generally, these practices relate to discrimination, segregation, and other types of unequal treatment or withholding of privileges because of race, color, religion, sex, or national origin.

A procedure is established for the implementation of the purposes of the title by an Equal Employment Opportunity Commission and for resort to the courts when allegedly unlawful employment practices cannot be voluntarily eliminated.

The same considerations which support the conclusion that the public accommodations title is valid under the

commerce

clause, particularly the landmark Jones and Laughlin and Darby cases, are equally applicable here. Many of the prior statutes regulating labor relations under the commerce clause upheld by the Supreme Court are directly analogous to the provisions of title VII.

Starting with the National Labor Relations Act and continuing through the Labor Management Reporting and Disclosure Act of 1959, Congress has enacted comprehensive legislation regulating labor and management practices. The Fair Labor Standards Act and similar statutes, which have as their purpose the improvement of the condition of persons whose work affects interstate or foreign commerce, furnish ample authority for the attempt in title VII to prohibit discrimination in employment practices. It is but a short step to proceed from a statute which prevents the discharge of workers for union activity to one which seeks to outlaw discrimination in employment on account of race. In a case involving the applicability of the Norris-LaGuardia Anti-Injunction Act to the picketing of a store denying equal employment opportunities to Negroes, Justice Roberts, speaking for the Court, said, with ɛomewhat prophetic insight:

"The desire for fair and equitable conditions of employment on the part of persons of any race, color or persuasion, and the removal of discriminations 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 force of labor organization or association. Race discrimination by an employer may reasonably be deemed more un

fair and less excusable than discrimination against workers on the ground of union affiliation•• " New Negro Alliance V. Sanitary Grocery Co., 303 U.S. 552, 561 (1938).

Employers, employment agencies as well as labor organizations whose business or activities affect interstate or foreign commerce are clearly subject to congressional legislative authority.

The decisions which have upheld statutes adopted under the commerce clause or other powers contained in the Constitution recognize that congressional authority is restricted by the due process of law guarantee of the Afth amendment. It is evident that most Federal regulatory statutes constitute a limitation to some extent on the use of private property or the exercise of private rights.

The National Labor Relations Act is an example of the type of Federal legislation upheld by the courts against the charge of interference with property rights. N.L. R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 43 (1937). The courts have dealt in the same manner with State legislation enacted under local police powers which has been challenged under the due process clause of the 14th amendment. In meeting this attack, the Supreme Court said in Nebbia v. New York, 391 U.S. 502, 538 (1934):

"The Constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people."

Nebbia and cases of like import are relevant because the power of Congress to deal with interstate commerce is similar to the authority of the States to regulate activities within the State. Titles II and VII do not seem to involve any greater interference with private rights than many of the Federal regulatory statutes to which we have referred or similar State legislation. The Supreme Court has upheld State and local antidiscrimination measures in Railway Mail Association v. Corsi, 326 U.S. 88 (1945), a New York statute barring racial discrimination by labor unions, and District of Columbia v. Thompson Co., 346 U.S. 100 (1953), a local law prohibiting discrimination on account of race in eating places.

We have not tried to provide in this memorandum an exhaustive discussion of the legal authorities in support of our views. From a review of the leading decisions of the courts, we have sought to cull out the fundamental principles governing congressional power under the Constitution and to refer specifically to a few cases which contain important holdings.

We are mindful of the heavy responsibility which each Member of Congress bears in acting upon this legislative proposal, and we hope that the above analysis will be of some assistance in discharging that responsibility. We are honored by the opportunity to be of help in attempting to clarify some of the legal issues involved in H.R. 7152.

Mr. CLARK. Mr. President, this letter, as will appear from its being printed in the RECORD immediately above what I am now saying, was joined in by some 22 lawyers, including some of the most eminent lawyers in the country, three former Attorneys General of the United States, four former presidents of the American Bar Association, and the deans of the law schools of Harvard, Yale, Minnesota, and Vanderbilt Universities.

I shall not pause to discuss the basis of their opinion, for it is quite short. Their reasoning, which is quite clearly based upon pertinent cases of the Supreme Court, shows ample precedent for the constitutionality of title VII under the interstate commerce clause of article I of the Constitution.

Mr. President, I also ask unanimous consent that a copy of an opinion rendered to me, as the chairman of the subcommittee on Employment and Manpower, by the Deputy Attorney General of the United States, Nicholas deB. Katzenbach, written at my request, under date of August 15, 1963, may be printed in full in the RECORD at this point in my remarks.

There being no objection, the opinion was ordered to be printed in the RECORD, as follows:

U.S. DEPARTment of JUSTICE,

OFFICE OF THE

DEPUTY ATTORNEY GENERAL,
Washington, D.C., August 15, 1963.

Hon. JOSEPH S. CLARK,
U.S. Senate,

Washington, D.C.

DEAR SENATOR CLARK: This is in response to your letter of July 25, 1963, in which you request the views of the Department of Justice on the constitutionality of certain fair employment practices bills pending before the Subcommittee on Employment and Manpower.

We believe that the commerce clause of the Constitution (art. I, sec. 8) provides authority for Congress to enact fair employment practices legislation.

The courts have repeatedly upheld the power of Congress to regulate employment relations affecting interstate and foreign commerce. Texas and New Orleans Railroad Co. v. Brotherhood of Railway Clerks, 281 U.S. 543 (1930); N.L.R.B. v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937); see also N.L.R.B. v. Fainblatt, 306 U.S. 601 (1939); Polish National Alliance v. N.L.R.B., 322 U.S. 643 (1944). Thus, in Jones and Laughlin, supra, the court said (301 US. at 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."

The Supreme Court has spoken in similar terms of race discrimination which infringes upon the right to work free from racial discrimination. Justice Roberts, speaking for the unanimous Court in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938) at p. 561 said:

"The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discriminations 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 union or any force 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."

In connection with the general civil rights legislation now pending before Congress, we have taken the position that discrimination in places of public accommodation which affects interstate commerce may be prohibited by Federal legislation under the commerce clause. For your convenience, we are attaching a copy of a memorandum sustaining this contention. Similarly, we believe that legislation may be enacted safeguarding the right to work free from discrimination because of race, color, religion, or national origin, where interstate commerce would be affected.

Nor would such legislation impose arbitrary restraints upon the conduct of private business in contravention of the due process clause. It is now clear that appropriate regulation of the hire and discharge of employees is not an unconstitutional abridgment of the contract right. Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177 (1941); N.L.R.B. v. Jones and Laughlin Corp., supra; see also Morgan v. Atlantic Coast Line Railway Co., 32 F. Supp. 617 (1940). The freedom of contract is not absolute, and is subject to reasonable regulations and prohibitions pursuant to valid governmental powers. See Nebbia v. New York, 291 U.S. 502, 527-528 (1934).

It is clear, too, that labor organizations may be covered by fair employment practices legislation. Labor unions have been accorded the statutory right to act as exclusive bargaining agents for nonmembers as well as members under Congress' power over interstate commerce. Similarly, there is no question but that the Federal Government may, in exercise of the same power, impose necessary restrictions to prohibit labor unions from discriminating because of race, religion, or national origin. Cf. United States v. Classic, 313 U.S. 297, 326 (1941); Smith v. Allwright, 321 U.S. 649, 664 (1944). The essence of free government requires that power must be accompanied by responsibility.

Indeed, the Supreme Court in Steele v. Louisville and Nashville Railway Company, 323 US, 192 (1944), held in a unanimous

opinion that a Negro railway foreman who was discriminated against because of color by a union chosen by the majority to represent the craft under the Federal Railway Labor Act could enjoin the union, notwithstanding that such discrimination was buttressed by the contract between the union and the employer. The Court said (323 U.S. at 199, 203):

"But we think that Congress, in enacting the Railway Labor Act and authorizing a labor union, chosen by a majority of a craft, to represent the craft, did not intend to confer plenary power upon the union to sacrifice, for the benefit of its members, rights of the minority of the craft, without imposing on it any duty to protect the minority."

[I]t 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 among members of the craft discriminations not based on such relevant differences. Here the discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations. Cf. Yick Wo v. Hopkins, 118 U.S. 356; Yu Cong Eng v. Trinidad, 271 U.S. 500; Missouri ex rel. Gaincs v. Canada, 305 U.S. 337; Hill v. Texas, 316 U.S. 400.

To the same effect is Tunstall v. Brotherhood, 323 U.S. 210 (1946); see also Morgan v. Virginia, 328 U.S. 373, and Railway Mail Association v. Corst, 326 U.S. 83 (1945).

State courts have also held that unions could not discriminate among their members because of race. Carroll v. Local 269, 133 N.J. Eq. 144, 31 Atl. (2d) 223, 225 (1943) and James v. Marinship Corp., 25 Calif. (2d) 721 155 P. (2d) 329 (1945), noted in 160 A.L.R. 900; see also Betts v. Beasley, 161 Kan. 459, 169 P. (2d) 831 (1946).

In short, it is our view that the fair employment practices bills pending before your subcommittee are constitutional.

Sincerely,

NICHOLAS DEB. KATZENBACH,
Deputy Attorney General.

Mr. CLARK. Mr. President, this cogent opinion covers pretty much the same ground as the latter opinion of eminent counsel outside the Government, and again makes it clear that the commerce clause is ample constitutional authority for title VII.

I also ask unanimous consent to have printed in the RECORD a memorandum forwarded to me by W. Willard Wirtz, Secretary of Labor, at my request, under date of August 17, 1963, and prepared by the Solicitor's Office of the Department of Labor, "Constitutional Basis for Legislation Before the 88th Congress To Prohibit Discrimination in Employment Because of Race, Color, etc."

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

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 At 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 controi activities wholly intrastate because of their effect on interstate com

merce."

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 emphasized 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; Hig

gins 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).

As

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. 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 con

sumer.

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 Steele, 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 representave 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 among 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 The squarely faced. 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 whereever it appears in the course of a statutory interpretation."

Another extremely important case is Railway Mail Assn. v. Corsi, 326 U.S. 88, which