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CIVIL RIGHTS LEGISLATION

WEDNESDAY, SEPTEMBER 11, 1963

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.O. The committee met, pursuant to notice, at 10:45 a.m., in room G308, New Senate Office Building, Senator James 0. Eastland (the chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Hart, Long (Missouri), Burdick, Dirksen, Keating, and Fong.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. Let's have order.
Senator Ervin, proceed.

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STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL

OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Senator ERVIN. Mr. Chairman, I would like to insert in the record a clipping from the Washington Star of September 7, 1963, which relates to a point already covered. This clipping shows that a supreme court justice of the State of New York has held the racially imbalanced school theory illegal in the State of New York for denying a child the right to attend a particular school on account of its race.

(The clipping referred to follows:)

[From the Washington Star, Sept. 7, 1963)

School RACIAL BALANCE PLAN UPSET BY COURT NEW YORK, September 7.—A board of education plan to achieve racial balance in a new school by zoning it so that white persons, Negroes, and Puerto Ricans would be in equal numbers has been upset by a court.

White parents, who wanted their children to continue in neighborhood schools, had said the plan amounted to discrimination against whites.

Observers noted that the ruling held out hope of legal redress for white parents who object to school officials sending their children to predominantly Negro schools outside their neighborhood.

Justice Edward G. Baker of State supreme court said yesterday the board's plan violated a section of the State education law that says:

“No person shall be refused admission into or excluded from any public school in the State of New York on account of race, creed, color, or national origin."

In Albany, the State education department's counsel, Charles A. Brind, pointed out that the same section was cited by the Malverne Board of Education in its argument against a State order to end racial imbalance in its three schools.

Education Commissioner James E. Allen, Jr., rejected that argument in refusing to reconsider his order.

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Mr. Brind said the decision "creates a precedent, I suppose.” He will defend the order in State supreme court in Albany next Friday against a challenge by white residents of Malverne, who object to reassignment of their children to a predominantly Negro school.

Justice Baker's decision concerned Junior High School 275, recently built on the edge of Brooklyn's Brownsville section, which is predominantly Negro and Puerto Rican. Next to it is predominantly white East Flatbush.

The board's plan, which Justice Baker noted was specifically intended to achieve integration, was to have enrollment of 35.2 percent Negroes, 33.6 percent Puerto Ricans, and 31.2 percent whites.

In protest over the plan, East Flatbush parents kept 7,000 children out of 13 neighborhood schools 1 day last March and 3,500 out for a day in June. The school is scheduled to open Monday, but a teachers union has threatened to strike all city schools.

The suit was brought by two Brooklyn couples, parents of two 12-year-old boys. They are Mr. and Mrs. Arthur Gottlieb and Mr. and Mrs. Isadore Balaban. They said they also represented the parents of 49 other white children.

Justice Baker said in his decision : "One question to be determined is whether or not inclusion of the factor of racial integration as a material basis for the board's determination renders that determination unlawful and void.

Senator Ervin. I would like to invite your attention, Mr. Attorney General, to these provision of the Constitution.

Section 1 of article I says

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,

And section 8, article I, which says the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers

That is, the powers enumerated specifically in section & and all other powers vested by this Constitution in the Government of the United States

The CHAIRMAN. Wait just a minute, Senator Ervin.
We have a quorum now. Senator Dirksen.

Senator DIRKSEN. Mr. Chairman, we have a nomination on the agenda, of Judge Marovitz, of Chicago. The senior judge has been urging me to get early action on it because of their heavy docket.

I move, as chairman of the subcommittee, that his nomination be set on the calendar.

The CHAIRMAN. It will have to be subject to the FBI report.
Is there objection?
(No response.)

The CHAIRMAN. Thomas J. Donegan, of New York, to be a member of the Subversive Activities Control Board.

Any objection, subject to FBI report?
(No response.)
The CHAIRMAN. Without objection.
Senator KEATING. Mr. Chairman, would you

entertain any business before we proceed?

The CHAIRMAN. No, sir; I wanted to get through with the Attorney General as quickly as I can.

Senator KEATING. I am desirous to have any suggestion for expediting these hearings.

The CHAIRMAN. Proceed, Senator.

Senator ERVIN (continuing). "In the Government of the United States or in any department or office thereof."

any further tive power.

Mr. Attorney General, do you not agree with me that these two constitutional provisions vest all the legislative power conferred upon the Federal Government by the Constitution in Congress and Congress alone?

Attorney General KENNEDY. That is correct.

Senator Ervin. I wish you would explain to me what authority the President had for issuing the order relating to housing and the order relating to federally assisted construction projects which clearly involve the lawmaking power, because they prescribe rules of conduct and provide punishments for violation of those rules of conduct.

Attorney General KENNEDY. Article II of the Constitution, Senator, states that the executive power shall be vested in the President of the United States of America. Issuing the order is part of his execu

Senator Ervin. The executive power vested in the President is the power to carry out acts of Congress and not the power to make laws.

Attorney General KENNEDY. That is correct. He was carrying out the laws of Congress.

Senator Ervin. No. There is no act of Congress which contains any provision outlawing racial discrimination in housing or in federally assisted construction projects, is there?

Attorney General KENNEDY. There are some laws of Congress, Senator, which give the executive branch of the Government some responsibility for administration in these fields. The President issued the Executive order under article II in furtherance of his responsibilities for administering these programs.

Senator ERVIN. Don't you agree with me that any order which undertakes to prescribe rules of conduct and to provide sanctions for those who violate those rules involves the use of the lawmaking power?

Attorney General KENNEDY. No; I do not. I think the President quite clearly had the authority under article II to issue the Executive order.

Senator ERVIN. Don't you know that the Supreme Court held in the Steel Seizure case that the only power the President has in carrying out the laws as an executive is carrying out the laws enacted by Congress?

Attorney General KENNEDY. That is correct.

Senator Ervin. Can you point out to me any act of Congress which provides any rules of conduct such as those prescribed in the housing order or the federally assisted construction order?

Attorney General KENNEDY. Senator, Congress passed certain housing laws. "The President has the responsibility of administering them and if he finds that he can further the intent of the acts, he can issue Executive orders in order to carry out those laws for which he has the responsibility of administration.

Senator Ervin. Can you advise me of any laws relating to housing or federally assisted construction projects that have anything whatever to do with the subject matter of the directives about housing and federally assisted construction projects ?

Attorney General KENNEDY. I think it was quite clear, in the first place, that he had this responsibility. Secondly, it is quite clear that you wouldn't want to have these programs administered in a discriminatory fashion, would you, Senator?

Senator Ervin. Congress passed the law, for example, that a veteran can borrow money from the veterans loan fund to build a dwelling house. That is as far as the act of Congress went in that respect. Yet the President issues an Executive order which provides in effect that before a veteran can borrow from the veterans Ioan fund, he has to stipulate that the Federal Government may supervise the sale or the leasing of his house in order to make it certain that he does not practice what the Federal Government calls racial discrimination.

Do you contend that is not adding an additional condition to the law authorizing loans to veterans for the purpose of obtaining a house?

Attorney General KENNEDY. I think it is quite clear it does not, Senator. I think it is quite clear that the President has that authority.

Senator Ervin. There is nothing whatever to that effect in the act of Congress.

Attorney General KENNEDY. But I think it is certainly understood that these laws should not be administered in a discriminatory fashion.

Senator Ervin. Don't you think Congress would have specified that condition if Congress had intended it to be imposed by the Government?

Attorney General KENNEDY. I think the Congress could have done so; but I think, Senator, also, that the President of the United States has a responsibility in this field and if he sees that these programs are not being administered in a nondiscriminatory fashion, he has the authority to issue an Executive order.

Senator Ervin. Yet the Constitution says that Congress is to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States or in any department or officer thereof.

And you contend that as an executive officer, the President of the United States can issue directives prescribing rules of conduct and prescribing punishment for those who disobey those rules of conduct?

Attorney General KENNEDY. Not under every condition. He could under this particular situation, and he did, and he had the authority to do so.

Senator Ervin. It seems to me that Congress might as well adjourn if the President has the power to do that. The country does not need a lawmaking body if the President can do that.

I refer now to title VI. As I construe section 601 of title VI in its rewritten form, it in effect amends every act of Congress that makes any provision for participation by the Federal Government in any type of activity or program. Do you agree with that construction ?

Attorney General KENNEDY. I think that is correct, Senator.

Senator Ervin. Will you tell me how many different acts of Congress are amended by section 601 of rewritten title VI?

Attorney General KENNEDY. I would think it has an effect on several hundreds of programs, Senator. In any program where there is a grant, a contract, a loan, an insurance guarantee by the Federal Government—wherever Federal funds are being used, in short—this section stipulates that there shall be no discrimination against an individual because of his race or color.

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