Senator ERVIN. Yes. Senator HRUSKA. A couple of instances have been given to me in this regard. One has to do with the savings and loan associations, for example, or a savings bank, which participates in a program of insured deposits for the protection of those people who want to save money and put it someplace, and be assured of being paid back, regardless of the management or any economic disaster. The other is the law that gives-extends credit to people who are victims of a natural catastrophe or disaster of some kind. In my State of Nebraska just a month ago we had very severe and violent floods in an area there which qualified many merchants for disaster loans from the Small Business Administration. Now, then, if there were a finding by the President or one of his authorized officials that there was discrimination in a locality on a racial basis, where there was a failure of a savings and loan or savings bank, or where there was a natural disaster, and these benefits from Federal funds were available, would it be competent, according to your understanding, that those insured deposits would not be paid out if that was the decision and the will of the President or his official under those circumstances? Senator ERVIN. There is no question that the passage of title VI would vest that arbitrary power in the President or anybody to whom he delegated it. Senator HRUSKA. Now, then, the distinguished Senator is one of the best constitutional lawyers I have ever had the privilege of knowing. I would like to ask him whether or not this situation would present some analogy, or whether it would be within the description or within the purview of what we historically know as bills of attainder. Senator ERVIN. Exactly. Senator HRUSKA. As I understand it, a bill of attainder is a situation where one is considered guilty without any trial and without any opportunity to be tried, or to defend himself. Am I correct in that general description? Senator ERVIN. That is correct. There is no provision in this section of any man to protect himself in the courts or otherwise. The only possible protection he could have would be in the Court of Claims, and he would have to travel from Alaska or Nebraska or North Carolina or some other distant point to Washington. And it is doubtful whether he would have any remedy there. Senator HRUSKA. But if a merchant in Linwood, Nebr., applied for a small business loan, and he was told, "No, there is discrimination in your State, according to our finding, therefore you will not have this loan," would that not in a sense be a finding of guilt, fastening the result of a finding of guilt on him as having had something to do with that association-with that discrimination, whether he had anything to do with it or whether he was aware of it or not? Senator ERVIN. Yes. If an officer of a savings and loan association or any other lending institution would commit some act in the racial field that didn't conform to the notions of the administration, then the stockholders of that institution would suffer the penalty by having Government insurance of their deposits withdrawn. 21-579-64 Senator HRUSKA. It has already been suggested, and there will be proposed in due time, I assume, an amendment which would reach another part of the objection that you had to this particular section, and that is the discretionary power which is vested in the executive department. The amendment would be to the effect that instead of the law providing being based on discretionary powers, that if such a finding of discrimination were made, it would be mandatory that these rights and these loans or grants or insurance or guarantees be denied to everybody in that State. What do you think of an amendment of that kind, which would remove from the bill or from the law this discretionary power in which the mind of the man applying that power would punish those who he considers bad and would withhold that punishment from those whom he considers good? Senator ERVIN. From the standpoint of having a desirable legal system, I would have to say that that amendment would be a good amendment, provided the party charged with the alleged offense was given some method of contesting his guilt in the courts. There are two serious objections to vesting vast discretionary power in the President or any other Federal official to withhold or to refuse to withhold Federal assistance. The first is that no remedy can be obtained in the courts to redress any wrongful decision. This is true because even in cases where courts have jurisdiction—a situation which does not exist in this instance the courts can compel the public official to exercise his legal discretion, but they cannot tell him how he shall exercise it. The second objection to the grant of such discretionary power is that it enables the official to use it for political purposes. He can reward political friends and punish political enemies even though both of them are exactly in the same situation and have committed exactly the same offense. Senator HRUSKA. Or their social friends or their social unfriendly people. It doesn't have to be limited to politics, does it? Senator ERVIN. No. Senator HRUSKA. Does that get back to the rule of law instead of the rule of men? me. Senator ERVIN. That is the rule of men-not of law. Senator HRUSKA. Well, these two instances have been suggested to I am sure there must be many, many more. But certainly those two-I would imagine it would extend even to the contract of insurance on vets, because that is a contract within the basis of within the purview of this section-this title is it not? Senator ERVIN. It covers every Federal activity and program, every one, including the payment of funds to veterans. Everything. Senator HRUSKA. Public assistance, social security-would that be included, in your judgment? Senator ERVIN. It says: All contracts made in connection with any program or activity by way of grant, contract, loan, insurance, guarantee, or otherwise. It would cover every activity of the Federal Government that deals with any financial matter at all. The CHAIRMAN. Farm? Senator ERVIN. Yes, everything. A farmer could be denied the benefit of price supports on the ground that he had discriminated against a tenant of another race. There is just no limit to it. The CHAIRMAN. Wouldn't it cover who a farmer could hire? Senator ERVIN. Yes. This second sentence says the President_can put any conditions he desires in any contract relating to any of these programs or activities to effectuate the policies of the administration in respect to racial matters. The extent to which the administration is prepared to go in this field if title VI is enacted into law is indicated by the Presidential order relating to federally assisted construction projects. I hold a copy of such order in my hand. As this Presidental order now stands, without the exemptions which it says may be made later, a man who sells a tenpenny nail for use in any project financed in whole or in part by the Federal Government will have to contract that the Federal Government can supervise his employment practices, the upgrading of his employees, the demotions of his employees, the transfer of his employees from one place to another, or from one job to another, the recruitment of his employees, his recruitment advertising, the layoff of his employees or the termination of their employment, the rates of pay or other forms of compensation of his employees, and the selection for training of his employees. He will have to agree, by contract, that he can be supervised and controlled by the Federal Government in these ways in order that he might be compelled to conform to the Federal Government's notions as to what should be done in these respects in the employment of persons of different races. The CHAIRMAN. Isn't it true, if we pass this bill, we confer the power of dictatorship? Senator ERVIN. There is no doubt that this bill, if passed, would confer the power of a dictator upon the President. If passed, the bill would create what can be fittingly described as a police state. It would take innumerable Federal employees to supervise the execution of the powers that are vested in the President by title VI for the purpose of preventing racial discrimination according to his standards. As I have stated, this observation is sustained by the Presidential order relating to federally assisted construction projects. This order was issued on June 22, and published in the Federal Register of June 25. It deals only with construction projects financed either in whole or in part by the Federal Government. This order contains a provision which requires everybody who furnishes any materials to any project financed, either in whole or in part, with Federal funds to agree, by contract, to conform to Federal racial policies in certain action. It says such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay, or other forms of compensation, and selection for training, including apprenticeship. If title VI is approved by Congress, the President can impose similar conditions upon all individuals, businesses, and communities throughout the United States having any connection with any pro gram or activity financed, in whole or in part, either directly or indirectly, by the Federal Government. Indeed, he can go even farther in imposing his racial views upon all persons and institutions coming under the provisions of the bill. The CHAIRMAN. You certainly could not assume that it wouldn't be enforced. Senator ERVIN. Incidentally, under this same title, the President could deny, to people embraced within the housing program, not only the right to determine to whom their land should be sold, but also the right to determine to whom their property could be rented. The Supreme Court of the United States has held in Shelley v. Kraemer, 334 U.S. 1, that State courts cannot enforce a racial restriction in a deed, because that would be State action. But the Supreme Court also held that private restrictive covenants barring the sale of land to non-Caucasians are valid, under the 14th amendment, so long as the purposes of those agreements are achieved by the parties through voluntary adherence to the terms. And that is held not only in Shelley v. Kraemer, but in Hurd v. Hodge, 334 U.S. 24, and Barrows v. Jackson, 346 U.S. 349. The President, under this title of the bill, could exercise the power to take away from people covered by the housing program the rights they possess under the 14th amendment to determine who their neighbors should be. Senator JOHNSTON. In other words, the courts have said that the State cannot make it prohibitive, but the individuals themselves can? Senator ERVIN. Yes. It is impossible to exhaust all of the possibilities of the action the Federal Government could take under the powers that would be vested in the administration by title VI. I am now going to call attention to title VII. Title VII would give congressional sanction to the President's Commission on Equal Opportunity in Employment, which was created by an Executive order. It merely states, in general terms, that the Commission shall exercise such powers as are necessary to prevent discrimination against employees or applicants for employment 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 United States is provided by way of grant, contract, loan, insurance, guarantee, or otherwise. I am reading from section 701, on pages 35 and 36 of the bill. As the committee knows, articles I of the Constitution of the United States vests, in Congress, all of the legislative power of the Federal Government. It has been held, in many cases, that Congress cannot delegate, to any person, the President or anybody else, the power to determine to whom a law shall apply, or the power to determine what shall constitute violations of that law, or the power to determine what the punishments under that law shall be. I will now read from lines 2, 3, 4, 5, 6, 7, and 8, on page 36 of the bill, section 701: The Commission shall have such powers to effectuate the purposes of this title as may be conferred upon it by the President. 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. In other words, the President's Commission is to have all the powers conferred upon it by the President, whatever they may be. One will search the law books in vain for a more unmitigated attempt to delegate the powers of Congress to legislate to the President. There are a number of decisions of the Supreme Court on that point. They all lay down the proposition that Congress can delegate the power to an executive agency to make a finding of fact, or to exercise some discretion in the carrying out of an act. But they also say that Congress cannot delegate, to the President, or to anybody else, the power to say to whom an act shall apply, what shall constitute specific offenses under the act, or what punishment will be visited upon those who violate the act. I will not encumber the record with citations of these decisions. There are many of them that hold that Congress cannot delegate such power to the President. I want to say a few things in conclusion. A strange theory has arisen in the United States to the effect if a man wishes to select, as his neighbors and associates, and as the associates of his immature children, people belonging to his race, he is an evil man who discriminates against people of other races. That is the theory upon which this legislation is based. I find it extremely difficult to accept that theory. I have noticed, in all areas of the country that I have been privileged to visit, that where men are left free to select their own associates and associates for their immature children, they virtually always select people of their own race. I do not think that that is evil or unnatural. I think it is obedience to a law of nature which says that like seeks like. I think that is perfectly natural. I think that these efforts to prevent people from selecting, as their neighbors, and as associates for themselves and their children, members of their own race are efforts to bring about something which is artificial rather than natural. As a result of this strange theory, we have agitation for laws under which men would be denied the right to select their neighbors, or to determine the use of their own property. I don't think that any man can enjoy any right unless he has economic freedom. If he does not have economic freedom, he has no means by which he can really exercise any other right he is given. I don't think that the fact that people like to live in neighborhoods inhabited by people of their own race manifests an evil mind or constitutes any discrimination against people of other races. I wish to cite certain figure relating to the District of Columbia to support the thesis that there are millions of Americans who do not believe that the Federal Government ought to undertake to compel compulsory integration of the races. When the school desegregation decision was handed down in May, 1954, it was decided that the public schools of the District should be immediately desegregated. It was said that this would make the Capital a showplace for the Nation to emulate. The white population of the District fell from 517,865 in 1950 to 345,263 in 1960-a loss of 172,602. During the same period the enrollment of white children in the public schools of the District de |