to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes of freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."

Congress cannot abdicate its lawmaking power under the Constitution, or delegate it to the President. This is true because the retention and exercise of such power by the Congress is "vital to the integrity and maintenance of the system of government ordained by the Constitution." The principle that Congress cannot abdicate or transfer to others its legislative functions "is not answered by the argument that it should be assumed that the President * ** will act, for what he believes to be the public good. The question is not one of motives, but of constitutional authority, for which the best of motives is not a substitute" (Panama Refining Company v. Ryan, 293 U.S. 388, 420, and 421).

In his recent book entitled "A Commentary on the Constitution of the United States," Bernard Schwartz correctly defines the lawmaking power as "the power to prescribe rules of conduct which must be obeyed lest the sanctions specified by the lawmaker be imposed" (vol. II, p. 75).

An act of Congress constitutes an unconstitutional delegation of the legislative power of Congress to the President if such act undertakes to confer upon the President the power to make a law or to refrain from making a law, or to determine to whom the law shall be applicable and to whom it shall not apply, or to determine what the law shall command or prohibit, or to determine what punishment shall be inflicted upon those who omit what the law commands or commit what the law prohibits (Kent v. Dulles, 357 U.S. 116; U.S. v. Sharpnack, 355 U.S. 286; American Power & Light Company v. Securities Exchange Commission, 329 U.S. 90; Panama Refining Company v. Ryan, supra).

3. THE CIVIL RIGHTS BILL AS AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AND JUDICIAL POWER TO THE PRESIDENT

Titles VI and VII of the administration's civil rights bill are divisible into two parts. The first part, which consists of the first sentence of section 601 of title VI, is addressed to federally assisted programs and activities; and the second part, which is composed of the second sentence of title VI and section 701 of title VII, is concerned with employment practices. Let us consider these parts in their numerical order.

The first part, i.e., the first sentence of section 601 of title VI, reads as follows: "Notwithstanding any provision to the contrary in any law of the United States providing or authorizing direct or indirect financial assistance for or in connection with any program or activity by way of grant, contract, loan, insurance, guaranty, or otherwise, no such law shall be interpreted as requiring that such financial assistance shall be furnished in circumstances under which individuals participating in or benefiting from the program or activity are discriminated against on the ground of race, color, religion, or national origin or are denied participation or benefits therein on the ground of race, color, religion, or national origin."

Since article II, section 3 of the Constitution provides that the President "shall take Care that the Laws be faithfully executed," it necessarily follows that the President is charged with carrying out the provisions of the first sentence of section 601 of title VI to the extent of their constitutionality. This being true, these provisions undertake to vest in the President discretionary powers of unprecedented sweep, undefined character, and unspecified severity. They make one thing, and one thing only, reasonably clear, namely, the President, acting in person or through Federal executive agencies designated by him, is to use according to his uncontrolled discretion and in ways of his own devising untold billions of dollars of congressional appropriations as economic blackmail to coerce States, political subdivisions of States, charitable institutions, business enterprises, and individuals into conformity with the President's notions concerning racial relations. In all other respects, Congress is to leave the matter covered by these provisions to the President without standard or rule to be dealt with as he pleases.

Apart from the language which relates to a denial of participation or benefits in federally assisted programs or activities, the only reference in the first sentence of section 601 of title VI to discrimination is to individuals who "are discriminated against on the ground of race, color, religion, or national origin." The determination of the individuals covered by this reference is left to the unbridled imagination of the President.

I make this assertion because it is well established by dictionaries and judicial decisions that the word "discrimination" without context merely means the act of treating one differently from another. The word "discrimination" as used in this reference has no contextual explanation whatever other than the provision that discrimination "is to be against" individuals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this reference occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? The first sentence of section 601 of title VI does not say. It leaves the answering of this question to the uncontrolled imagination of the President. Even Caligula wrote his laws in small letters. He did not conceal them within his cranium.

When all is said, the first sentence of section 601 of title VI constitutes a brazen effort to transfer to the President the lawmaking power of Congress in violation of article I, sections 1 and 8 of the Constitution. This is true because this sentence leaves the determination of these questions to the arbitrary discretion of the President, acting in person or through Federal executive agencies:

What acts or omissions constitute unequal or unfair treatment under the provision which condemns without context or elaboration discrimination against individuals "on the ground of race, color, religion, or national origin"? What economic, legal, or political rights and what governmental powers must States and political subdivisions of States relinquish to the Federal Government for the privilege of participating in federally assisted programs or activities? What economic, legal, personal, or property rights must charitable institutions, business enterprises, and individuals surrender to the Federal Government for the privilege of participating in federally assisted programs or activities? What courses must participants in such programs or activities pursue in carrying them out to avoid charges of unequal, unfair, or illegal discrimination? By what procedures are participants in such programs or activities charged with unequal, unfair, or illegal discrimination to be convicted or acquitted? What punishments are to be imposed upon participants in such programs or activities when they are convicted of unequal, unfair, or illegal discrimination? By what procedures are participants in such programs or activities to obtain a review or correction of convictions which they claim to be unjust? And finally, what redress are participants in such programs or activities to have for the economic damage or destruction which may be inflicted upon them by injudicious or improvident decisions of the President or the executive agencies through which he may act?

These questions make it obvious that the provisions of the first sentence of section 601 of title VI do not stop with the transfer of the lawmaking power from Congress to the President. They also make the President the accuser, the judge and the jury, and the executioner. In so doing, they attempt to vest in the President the judicial power to condemn and punish in violation of article III, section 1 of the Constitution.

Regardless of the name by which it may be called, any government is a tyranny when the rights and responsibilities of its citizens are dependent upon the will of one public official.

While the first sentence of section 601 of title VI is silent on the matter, we can easily infer the steps the administration will take if the bill is enacted. The administration will divert every program or activity of the Federal Government from its primary purpose to compel the American people to conform to its notions in respect to racial relations. This assertion finds ample proof in the orders relating to employment and housing issued by the President and the orders relating to so-called places of public accommodations issued by the Secretary of Defense without congressional authorization. Under the orders of the Secretary of Defense, the Departments of the Army, the Navy, and the Air Force are in the process of converting the military and naval commanders of our country into political arms of the executive department and of putting the Armed Forces at economic warfare with the civilian population to compel civilians to operate their commercial enterprises in conformity with the Presidential will.

Before discussing the provisions of titles VI and VII relating to employment practices, I will digress for a moment to observe that there are already sufficient laws upon the Federal statute books to deal in an adequate manner with any State or local official who denies or attempts to deny any individual any right or privilege given to him by any act of Congress authorizing any federally assisted program or activity. Section 242 of title 18 of the United States Code makes it a crime punishable by fine and imprisonment for any State or local official willfully

to deprive any inhabitant of the United States of any right or privilege secured to him by the laws of the United States. Under sections 241 and 371 of title 18 of the United States Code, State and local officials and their coconspirators commit crimes punishable by fine and imprisonment if they conspire to deprive any citizen of any right or privilege secured to him by any act of Congress. Under sections 1983 and 1985 (3) of title 42 of the United States Code, any person may sue any State or local official and his coconspirator for damages if such State or local official deprives him of any right or privilege secured by any act of Congress. Moreover, under section 1983 of title 42 of the United States Code, any person may sue any State or local official for preventive relief if such State or local official threatens to deprive him of any right or privilege secured to him by an act of Congress.

This brings me to the provisions of titles VI and VII relating to employment practices.

The second sentence of section 601 of title VI reads as follows:

"All contracts made in connection with any such program or activity shall contain such conditions as the President may prescribe for the purpose of assuring that there shall be no discrimination in employment by any contractor or subcontractor on the ground of race, color, religion, or national origin.” Section 701 of title VII reads as follows:

"The President is authorized to establish a Commission to be known as the 'Commission on Equal Employment Opportunity,' hereinafter referred to as the Commission. It shall be the function of the Commission to prevent discrimination because of race, color, religion, or national origin by Government contractors and subcontractors, and by contractors and subcontractors participating in programs or activities in which direct or indirect financial assistance by the U.S. Government is provided by way of grant, contract, loan, insurance, guaranty, or otherwise. The President may also confer upon the Commission such powers as he deems appropriate to prevent discrimination on the ground of race, color, religion, or national origin in Government employment."

The mere casual reading of these provisions demonstrates beyond doubt that they attempt to transfer the lawmaking power of Congress to the Presiident in violation of article I, sections 1 and 8 of the Constitution.

Under the second sentence of section 601 of title VI, all contracts relating to federally assisted programs or activities are to "contain such conditions as the President may prescribe"; and under the third sentence of section 701 of title VII, the President's Commission on Equal Employment Opportunity is to "have such powers *** as may be conferred upon it by the President." The fourth and last sentence of section 701 of title VII contains similar language, which is susceptible of the interpretation that it empowers the President to nullify civil service laws if he deems such action "appropriate to prevent discrimination on the ground of race, color, religion, or national origin."

I note, in passing, that the second sentence of section 601 of title VI and section 701 of title VII are designed to authorize the President and his Commission on Equal Employment Opportunity to control employment practices by virtually all employers in all areas of the United States "to prevent discrimination against employees or applicants for employment because of race, color, religion, or national origin." This is true because the terms "contractor" and "subcontractor" as used in these provisions are broad enough to include every person who agrees to furnish any skill or any material for use in any program or activity "in which direct or indirect financial assistance by the U.S. Government is provided by way of grant, contract, loan, insurance, guaranty, or otherwise."

The extent to which the administration would carry this vast power if Congress should enact these provisions into law is well illustrated by Executive Order 11114, which the President issued on June 22, 1963, and which was published on pages 6485 to 6488, both inclusive, of the Federal Register for June 25, 1963. Under this Executive order, contractors, subcontractors, and persons selling them materials are barred from federally assisted construction projects and from selling materials for use in such projects unless they surrender to the Federal Government in advance some of the most cherished economic and personal rights belonging to Americans. For example, contractors, subcontractors, and materialmen are required to stipulate in advance that the Federal Government shall have the power to supervise the employment, the promotion, the demotion, the transfer, the layoff, the discharge, and the compensation of their employees. Moreover, they are required to stipulate in advance that the Federal Government may have access to their books, records, and accounts at all times.

All of this is to be done to enable the Federal Government to ascertain whether or not such contractors, subcontractors, and materialmen are complying with the rules, regulations, and orders issued by the Federal Government for the avowed purpose of preventing such contractors, subcontractors, and materialmen from discriminating against employees and applicants for employment because of their race, their creed, their color, or their national origin. Under the original draft of this Executive order, any businessman who wishes to sell a few tenpenny nails to anyone for use in a federally assisted construction project must surrender these powers to the Federal Government before he is permitted to make such sale.

In case any contractor, subcontractor, or materialman fails to comply with these stipulations or with any of the rules, regulations, or orders of the presidentially established Committee on Equal Employment Opportunity, he is subject to the following punishments: (1) His existing contract may be canceled, terminated, or suspended in whole or in part. (2) He may be declared ineligible for any further Government contracts. (3) He may have such additional sanctions * * * imposed "upon him as may be provided by rule, regulation, or order of the President's Committee on Equal Employment Opportunity."

Every businessman in America would do well to anticipate the harassment he will suffer at the hands of the Federal Government if titles VI and VII of the administration's civil rights bill are enacted into law. Every time he fires or demotes an employee for drunkenness or incompetency he may be confronted by the charge that his action was prompted by discrimination against such employee because of his race. Every time he promotes one employee rather than another he may be confronted by the charge that the latter was denied promotion because of his race. Every time he makes any difference between the compensation of one employee and that of another he may be confronted by the charge that the difference in compensation constitutes a discrimination against the employee receiving the lesser compensation because of his race. The businessman will have to disprove these charges or suffer such penalties as the cancellation of rights under existing contracts or rights to make future contracts not only with the Government but also with contractors or subcontractors working on federally assisted projects. Moreover, the businessman will have no remedy at the hands of the Federal Government if he suffers these penalties unjustly because of an improvident or injudicious decision by a Federal bureaucrat whose very identity may be hidden from him.

The Chinese have a proverb to the effect that a journey of a thousand miles starts with a single step. History taught the Founding Fathers that the journey of a people toward total governmental tyranny could start with a single legislative act. As a consequence, they vested all of the legislative power of the Federal Government in Congress and none of it in the President. It is well that they did so because the pressure of the demands of militant groups for coercive governmental action in their own behalf bears more heavily upon the single occupant of the Presidential office than it does upon the many occupants of congressional seats. For this reason, Senators and Representatives are more likely to remember that the overhauling majority of the people of America desire to retain the liberty to manage their own affairs in their own ways.

4. THE ADMINISTRATION'S CIVIL RIGHTS PROPOSALS AS A DENIAL OF
DUE PROCESS OF LAW

The Founding Fathers knew that governments of unlimited power use the forms of law to crush those who oppose their will. As a consequence, they decreed in the fifth amendment that "no person shall *** be deprived of life, liberty, or property without due process of law."

This principle did not originate in the American system of constitutional law. It was one of the ancient English liberties which the barons wrung from the reluctant hand of King John at Runnymede in 1215. Chapter 39 of Magna Charta declared: "No free man shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers or by the law of the land." The principle was reasserted by the petition of right which the English Parliament sent to Charles I in 1628. This petition said that no man should be "in any manner destroyed but by the lawful judgment of his peers, or by the law of the land," and that no man should be "put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law."

As the textwriter states in 12 American Jurisprudence, Constitutional Law, section 573, "One of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case, in which he declared that by due process of law is meant ‘a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.'"

The due process clause of the fifth amendment limits the legislative powers of Congress, the Executive powers of the President, and the judicial powers of the Federal courts. In short, it forbids any department of the Federal Government to take from any person any liberty or any property except by due process of law.

The administration's civil rights bill contemplates that the provisions of titles VI and VII are to be enforced against alleged violators by administrative decisions of the President, acting in person or through some executive agency, and the President's Commission on Equal Employment Opportunity, in some kind of administrative proceedings not defined in any way in the bill.

Let me enumerate the constitutional requirements of due process in respect to administrative proceedings affecting a person's personal or property rights as they are set out in 16A Corpus Juris Secundum, Constitutional Law, section 628, pages 849 to 873, both inclusive. They are as follows:

1. In proceedings of an administrative character affecting a person's liberty or property, notice and an opportunity for hearing are essential to due process. 2. Due process of law, with respect to administrative proceedings, requires an adequate hearing in which the procedure is consistent with the essentials of fair play.

3. In order to comply with the requirements of due process, the hearing in an administrative proceeding must be a full and fair one before an impartial officer. board, or body, free of bias, hostility, and prejudgment. A hearing is not a full and fair one unless it includes a reasonably fair opportunity to cross-examine opposing witnesses, to offer evidence in one's own behalf, and to be heard in one's own defense.

Moreover, "as a general rule, in order to satisfy the requirements of due process, it is required that administrative proceedings affecting property rights shall be subject to a review in the courts, and to a judicial determination made on notice and a hearing; and the right of judicial review of the constitutionality of statutes is essential to due process before rights and property of a citizen can be taken from him by a legislative or executive body." (16A C.J.S., Constitutional Law, sec. 629, pp. 873-874.)

It is well settled that administrative convenience or even necessity cannot override constitutional requirements of due process. Moreover, it is not enough that a person may be accorded notice and a hearing as a matter of favor or courtesy in an administrative proceeding. It is essential to due process that these rights be secured to him by the law authorizing the proceeding.

It seems advisable to note at this point that rights under existing contracts are property and rights to enter into future contracts are liberties within the protection of the due process clause of the fifth amendment.

It is astounding beyond measure that Congress should be urged to enact into law titles VI and VII of the administration's civil rights bill 748 years after the principle of due process of law was embodied in Magna Charta, and 173 years after it was enshrined in the fifth amendment of our Constitution. Titles VI and VII ignore every requirement of due process of law. They undertake to vest in the President, acting in person or through executive agencies, and the President's Commission on Equal Employment Opportunity, the arbitrary and tyrannical power to take from States, local subdivisions of States, charitable institutions, business enterprises, and individuals rights under existing contracts and liberties to enter into future contracts without notice or hearing or trial in flagrant violation of the due process of law guaranteed to all persons by the fifth amendment.

Undoubtedly Daniel Webster had such tyrannical governmental actions in mind as those proposed by titles VI and VII of S. 1731 when he uttered these eloquent words:

"Other misfortunes may be borne, or their effects overcome. If disastrous wars should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still, under a new cultivation, they will grow green again, and ripen to future harvests.