Katzenbach v. McClung Brief for Appellants
Public Court Documents
October 5, 1964

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Brief Collection, LDF Court Filings. Katzenbach v. McClung Brief for Appellants, 1964. 1929fa9c-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/be3bbe52-76e5-43c7-adf0-c42bb33a7762/katzenbach-v-mcclung-brief-for-appellants. Accessed May 01, 2025.
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N o . 5 4 3 Jtt ilxt JSfljmne d[m\ <rf th Mnlid $tnU% October T eem , 1964 N icholas deB. K atzenbach, as A cting A ttorney General of th e U nited S tates of A m erica ; M acon L . W eaver, as U nited S tates A ttorney for th e N orthern D istrict of Alabama, appellants v. Ollie M cClung, Sr ., and Ollie M cClijng, J r. APPEAL FROM T B E UNITED STA T E S D ISTRIC T COURT FOR THE NO RTHERN D ISTRIC T OF ALABAM A BRIEF FOR THE APPELLANTS ARCHIBALD COX, Solicitor General. BURKE MARSHALL, Assistant Attorney General, R A L PH S. SPRITZER, P H IL IP B. H EY M AN N, Assistants to the Solicitor General, HAROLD H. GREENE, A LA N G. M ARER, GERALD P. CHOPPIN, Attorneys, Department of Justice, "Washington, D.C., 20530. I N D E X Pag* Opinion below--- ------------------------------------------------------- 1 Jurisdiction----.---.-.— — _——------------------------------------- 1 Questions presented__ -------------------------------- 2 Statutes involved-------------------- ——____-------------------- 2 Statement--______________ ____ — — '------------------- 2 Summary of argument-:--- -------------------------- 7 Argument_____A----,— :— --------------------------------- 11 I. The complaint should be dismissed for want of equity jurisdiction_________________ 12 II. Section 201 of the Civil Eights Act of 1961, as applied to appellee’s restaurant, is a valid exercise of the commerce clause______________ 24 A. The power to regulate interstate com merce extends to local activities whose regulation is appropriate to protect in terstate commerce from burdens or obstructions__________________________ 27 1. The power of Congress is not con fined to the regulation of the course of interstate commerce but extends to matters substantially affecting it__________________ 27 2. The power to regulate local matters substantially affecting interstate commerce extends to retail estab lishments including restaurants_ 30 3. Cases holding that interstate com merce ends when goods “come to rest” in a State are irrelevant to the power of Congress to regu late local activities which sub stantially burden interstate com merce_______________________ 32 (i)748-011—64------1 II Argument—Continued II. Section 201 of the Civil Rights Act, etc.—Con. B. Racial discrimination in restaurants sell ing food from out-of-state sources bur- pag8 dens and obstructs interstate commerce. 35 1. Racial discrimination in restau rants serving food from out-of- state is a prolific source of disputes burdening and obstruct ing interstate commerce_______ 38 2. Racial discrimination in restau rants serving food from out-of- state artificially restricts the market for goods moving in interstate commerce___________ 44 3. The absence of an explicit recital that racial discrimination in restaurants serving food from out-of-state sources burdens in terstate commerce does not in validate Title I I ______________ 48 4. Title I I is not invalidated by the absence of provision for an ad ministrative or judicial finding whether discrimination in an individual restaurant affects in terstate commerce, before bring ing it within the coverage of the Act,.__. . . ------------------— 53 Conclusion.._____ _______ _______ _____ _______________ 58 CITATIONS Cases: Adair v. United States, 208 U.S. 161.---------------- - 29 Adler v. Board of Eduoation., 342 U.S. 485---------- 23 Arizona v. California, 283 U-S. 423------ — -------- 53 Ashwander v. Tennessee Valley Authority, 297 U.S. 288____ ________________________ _______ 18 Baltimore <& Ohio R. Co. v.. Interstate Commerce Comm., 221 U.S. 612____ . . . . . . -------- -— . 29,49,55 Berea College v. Kentucky, 211 U.S. 45------------------ 18 Cases—Continued Board of Trade of Kansas City v. Milligan, 90 F. pag« 2d 855_________________ -___________________ ' IV Bolton & H ay, 100 N.L.R.B. 361________________ 32 Boynton v. Virginia, 361 TJ.S. 454---------------------— 58 Brandeis <& Sons, J . L. v. Labor Board, 142 F. 2d 977, certiorari denied, 323 TJ.S. 751------------------ 31 Brennan's French Restaurant, 129 N.L.R.B. 52-------- 32 Brooks v. United States, 267 TJ.S. 432------------------- 37 Browder v. Gayle, 142 F. Supp. 707 affirmed 352 TJ.S. 902_____________ _______ _______________ 17 Brown v. Maryland, 12 Wheat. 419_______________ 33 Camhnetti v. United States, 242 TJ.S. 470--------------- 37 Carter v. Carter Coal Co., 298 TJ.S. 238---------------- 23,29 Chicago Board of Trade v. Olsen, 262 TJ.S. 1--------29,36 Chicago ds Grand Trunk Ry. v. Wellman, 143 TJ.S. 339_______________ ____________________ 18 Childs Co., 88 NLRB 720________________________ 32 Childs Co., 93 N.L.R.B. 281_____________________ 32 City o f Yonkers v. U.S., 320 TJ.S. 685___________ 50 Civil Rights Cases, The, 109 TJ.S. 3------------------- 25 Clark v. Paul Cray, Inc., 306 TJ.S. 583------------------ 51 Consolidated Edison Co. v. Labor Board, 305 TJ.S. 197_________________________________ — 47 Coronado Coal Co. v. United Mine Workers, 268 TJ.S. 295_________________ 29 Crown Kosher Supermarket v. Gallagher, 176 F. Supp. 466, reversed on other grounds, 366 TJ.S. 617________________ _______ -___________ 17 Culinary Workers di Bartenders Union v. Labor Board, 310 F. 2d 853________________________ 32 Currin v. Wallace, 306 TJ.S. 1----------------------------23,24 In re Debs, 158 U.S. 465________________________ 30 Douglas v. City o f Jeammette, 319 U.S. 157----------- 8,16 Euclid v. Ambler Realty Co., 272 U.S. 365---------l-_- 23 Everard's Breweries v. Day, 265 U.S. 545-------------------- 36 Federal Trade Commission v. Mandel Bros., 359 U.S. 385_______________________________ - 37,38,49 First Employers’ Liability Cases, 207 U.S. 463__—_ 29 Florida v. United States, 282 U.S. 194---------------- 50 Gibbons v. Ogden, 9 Wheat. 1------------------- — 9,28,30,59 til IV Cases—Continued pag® Gober v. City of Birmingham, 373 U.S. 374_______ 7 Hamilton v. Kentucky Distilleries Go., 251 U.S. 146_ 53 Hammer v. Dagenhart, 247 U.S. 251_____________ 29 Hemderson v. United States, 339 U.S. 816_________37, 58 Hemdriek v. Maryland, 235 U.S. 610______________ 18 Hooven dr. Allison Go. v. Evatt, 324 U.S. 652_______ 33 Houston <& Terns By. v. United States, 234 U.S. 342_ 29 Lntrl Brotherhood v. Labor Board, 341 U.S. 694___ 31 Joe Hunt's Restaurant, 138 N.L.K.B. 470_________ 32 Kennedy v. Los Angeles Joint Exec. Board, 192 F. Supp. 339___________________________________ 32 Labor Board v. Bradford Dyeing Assn., 310 U.S. 318____________________________________ 57 Labor Board v. Childs Go., 195 F. 2d 617--------------- 31 Labor Board v. Denver Bldg, da Const. Trades Council, 341 U.S. 675------ .-------------------------------- 31,47 Labor Board v. Fainblatt, 306 U.S. 601__________ 47 Labor Board v. Gene Compton's Corp., 262 F, 2d 653______________________________________ 32 Labor Board v. Howard Johnson Co., 317 F. 2d 1, certiorari denied, 375 U.S. 920--------------------------- 32 Labor Board v. Jones da Laughlin Steel Corp., 301 U.S. 1________________ - _________________ 28,29,36 Labor Board v. Laundry Drivers Local, 262 F. 2d 617_____________ _______ - ____- ______________31-32 Labor Board v. Local Joint Board, 301 F. 2d 149— 31 Labor Board v. Morrison Cafeteria Co. of Little Rock, 311 F. 2d 534___________________________ 31 Labor Board v. Phoenix Mutual Life Insurance Co., 167 F. 2d 983, certiorari denied, 335 U.S. 845----- 57 Labor Board v. Reliance Fuel Corp., 371 U.S. 224— 11, 28,30,46,57 Legal Tender Cases, 12 Wall 457------------------------- 50 Lion Manufacturing Corp. v. Kennedy, 330 F. 2d 833____________________________ ___ ,------------- 17 Local 7b v. Labor Board, 341 U.S. 707------------------ 31 Lottery Ca.se, The, 188 U.S. 321---------------------------- 37 May Department Stores Co. v. Labor Board, 326 U.S. . 376---------------- ----------- ---------------------------------- 31 McCray v. United States, 195 U.S. 27------------------- 53 V Cases—Continued Page McCulloch v. Maryland, 4 Wheat. 316------------------- 53 McDermott v. Wisconsin, 228 U.S. 115— — ----------- 38 McGowan v. Maryland, 366 U.S. 420—------------------ 51 McLeod v. Chefs, Cooks, Pastry Cooks <& Assistants Local 89, 280 F. 2d 760___ ______ ____ — — — 32 McLeod v. Chefs, Cooks, Pastry Cooks & Assistants Union, 286 F. 2d 727____ 32 Meat Cutters v. Pairlat.cn Meats, 353 U.S. 20----------- 31 Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580-------------------- 51 Mil-Bur, Inc., 94 N.L.R.B. 1161—-------------- --------- 32 Mintz v. Baldwin, 289 U.S. 346------------------ 33 Mitchell v. United Stales, 313 U.S. 80.----------------- 37, 58 Norman v. Baltimore c& Ohio II. Co., 294 U.S. 240— 35 Pacific States Box and Basket Go. v. White, 296 U.S. 176_________________________________________ 34 Packer Corp. v. Utah, 285 U.S. 105---------------------- 34 Pennsylvania v. West Virginia, 262 U.S. 553--------- 23 Pierce v. Society of Sisters, 268 U.S. 510--------------- 23 Polish National Alliance v. Labor Board, 322 U.S. 643--------- ------------------------- 47,49 Public Utilities Commission of California v. United States, 355 U.S. 534-------------------------------------- 23 Railroad Commission of Wisconsin v. Chicago B. <& Q. R. Co., 257 U.S. 563_______________ _____ 29 Railroad Retirement Board v. Alton R. Co., 295 U.S. 330_________________________________________ 29 Retail Fruits <& Vegetable Union v. Labor Board, 249 F. 2d 591______ 31 Richmond Hosiery Mills v. Camp, 74 F. 2d 200------ 16. Ryan v. Amazon Petroleum Corp., 71 F. 2d 1-------- ' 16 Siemons Mailing Service, 122 N.L.R.B. 81--------------- 57 Siler v. Louisville and Nashville R. Co., 213 U.S. 175-------------------------- ------------------------------------- 18 Sinking Fund Cases, 99 U.S. 700-------------------------- 51 Sioux Valley Empire Electric Assn., 122 N.L.R.B. 92__________________________________________ 57 Smitley v. Labor Board, 327 F. 2d 351___________ 32 Southern Railtoay Co. v. United States, 222 U.S. 20_______________________________________ 29,49, 55 VI Cases—Continued South Carolina State Highway D eft. v. Barnwell page Bros., 303 T7.S. 177____________________________33, 51 Sparks v. Mellwood Dairy, 74 F. 2d 695---------------- 17 Spielman Motor Co. v. Dodge, 295 U.S. 89------------ 15 Stafford v. Wallace, 258 U.S. 495------------------------- 36 Standard Oil Co. v. United States, 221 U.S. 1-------- 29 Stanton Enterprises, Inc., 147 N.L.R.B. No. 81, 4 CCH Lab. L. Rep. 21,075, para. 13,211--------------- 32 Stork Restaurant, Inc. v. McLeod, 312 F. 2d 105----- 32 Stouffer Corf., The, 101 N.L.R.B. 1331---------------- 32 Superior Court o f Washington v. Yellow Cab Co., 361 U.S. 373__________1_____________________ 34 Sw ift da Co. v. United States, 196 U.S. 375------------ 35 Terrace v. Thompson, 263 U.S. 197---------------------- 22 Terns amd New Orleams Railroad v. Brotherhood of Railway •amd Steamship Clerks, 281 U.S. 548— 29 Townsend v. Yeomans, 301 U.S. 441------------------- 52 Tyler v. Judges of the Court o f Registration, 179 U.S. 45____________________________________ 18 United Public Workers v. Mitchell, 330 U.S. 75------ 17 United States v. Butler, 297 U.S. 1---------------------- 51 United States v. Carotene Products Co., 304 U.S. 144____________________________________ 51 United States v. Darby, 312 U.S. 100— 11,28,29,38, 54, 56 United States v. Ferger, 250 U.S. 199------------- 29,49, 55 United States v. Harris, 106 U.S. 629------------------- 51 United States v. E. C. Knight, 156 U.S. 1------------ 29 United States v. Lowden, 308 U.S. 225--------------- — 29 United States v. Sullivan, 332 U.S. 689---------------- 37,49 United States v. Wiesenfeld Warehouse Co., 376 U.S. 86_____________________________________ 33 United States v. Wnghtvwod Dairy Co., 315 U.S. 110—______________________________ - — 27 Veazie Bank v. Fenno, 8 Wall. 533---------------------- 53 Virginian Ry. v. System Federation No. Ifl, 300 U.S. 515_____ _____ - ________ __________ — — 29,49 United States v. Yellow Gab Co., 332 U.S. 218-------- 34 Watson v. Buck, 313 U.S. 387__________________ — 17 Weigle v. Curtice Bros. Co., 248 U.S. 285-------------- 34 Wickard v. Filbum, 317 U.S. I l l __— 17,27,29,46,47,55 Woodruff v. Parham, 8 Wall. 123------------------- — 33 VII Cases—Continued Page Tarnell v. Hillsborough Packing Co., 70 F. 2d 435— 16 Youngstown Sheet <& Tube Co. v. Bowers, 358 U.S. 534__ 33 U.S. Constitution and Statutes: Art. I, Sec. 8, Cl. 3_____________________________ 25,27 Art. I, Sec. 8, Cl. 18____________________________ 25 First Amendment----- ----------- -------------— -------11,24,59 Fifth Amendment__________________________ 7,11,24,59 Ninth Amendment------ ---------------------------:---------- 11,24 Tenth Amendment_________________ _—---------- - 4,11, 24 Thirteenth Amendment— -----i— :------------- -— 11,24, 59 Fourteenth Amendment------------------- —-----6,10 Fourteenth Amendment, Section 5—-----— — ----- 26 Civil Rights Act of 1875,18 Stat. 335-*— ,------ -------- 26 Civil Rights Act of 1957, 71 Stat. 637— ------- 20 Civil Rights Act of 1960, 74 Stat. 86------- 20 Civil Rights Act of 1964— 2, 4, 5, 8,12,13, 19, 20, 21, 25, 59' Title 11— — 2, 4, 5, 6, 7, 12, 13, 15, 20, 53, 58, 59 Sec. 2Q1„____ -_______ *— -------— 8,13,24, 54,55 Sec. 201(a)_______________ - — -----------12,52 Sec. 201(b) (1)------- 19 Sec. 201(b) (2)—— _____________________ 19 Sec. 201(b)(3)__________________________ 19 Sec. 201(c)(2)__________________________ 4,12 Sec. 201(d)______________________________10,25 Sec. 207(b)_______________________ 13 Title X — _______— _____________- ______ 20 Automobile Information Disclosure Act, 15 U.S.C. 1231__________________________- — — -------- 49 Bill of Lading Act, 49 U.S.C. 121---------------------------- 49 Fair Labor Standards Act, 29 U.S.C. 201------- — ,— 48,49 Fair Labor Standards Act, 29 U.S.C. 201, Sec. 6-------- 55 Fair Labor Standards Act, 29 U.S.C. 201, Sec. 7-------- 55 Fair Labor Standards Act, 29 U.S.C. 201, Sec. 15 (a) ( 2 ) ------------------------- ---------- --------- --------- 55 Federal Food, Drug & Cosmetic Act, 21 U.S.C. 201----- 37 Fur Products Labelling Act, 15 U.S.C. 69--------------- 49 National Labor Relations Act, 29 U.S.C. 141------------ 48,49 Railway Labor Act, 45 U.S.C. 151------------------------- 49 Safety Appliance Acts, 45 U.S.C. 8------------------ .— 49 Safety Appliance Acts, 49 U.S.C. 26---------------------- 49 VIII U.S. Constitution and Statutes—Continued page Securities Exchange Act of 1934, 15 U.S.C. 78b-------- 49 Textile Fiber Products Identification Act, 15 U.S.C. 70_________________________________ — 49 Trust Indenture Act of 1939, 15 U.S.C. 77bbb--------- 49 18 U.S.C. 241, 242__________________________ 13,20 28 U.S.C. 1252_____________________________ 2 28 U.S.C. 1253_____________________________ 2 Miscellaneous: Analysis of Prof. Paul A. Freund, S. Bep. 872, 88th Cong., 2d Sess., pp. 82-83__________________ 38 Census of Business, U.S. Bureau of the Census, 1958— 19 110 Cong. Bee. (daily ed.) : P. 7174____________________________________ 44 P. 7980___________________________________ - 39 1 Cooley Constitutional Limitations (8th ed.), p. 832_ 18 Hearings before the Committee on Commerce, United States Senate, 88th Cong., 1st Sess., on S. 1732, Part 2, Ser. 27_____________________ 40, 41, 42, 43, 44, 45, 46 Beport of the House Judiciary Committee, 88th Cong., 1st Sess., No. 914, Part 2, on H.B. 7152 (December 2, 1963 42 Jit ife JSitjimite <2{mtri of k t ®tM jStatea October T erm , 1964 No. 543 N icholas deB. K atzenbach, as A cting A ttorney General of the U nited S tates of A m erica ; M acon L. W eaver, as U nited S tates A ttorney for the N orthern D istrict of A labama, appellants v. Ollie M cClung, S r., and Ollie M cClung, J r. APPEAL FROM THE UNITED STATES D ISTR IC T COURT FOR THE NORTHERN D ISTRIC T OF ALABAM A BRIEF FOR THE APPELLANTS OPINION BELOW The opinion of the district court (R. 34) is not yet reported. JURISDICTION The order of the district court was entered on Sep tember 17, 1964 and a notice of appeal filed on the same date.* 1 The jurisdictional statement was filed on stay of the order was denied by the district court, on September 18, 1964, but granted by order of Mr. Justice Black, dated September 23, 1964. (l) 2 September 28, 1964. The jurisdiction of this Court is invoked under 28 U.S.C. 1252 and 1253. QUESTIONS PRESENTED 1. Whether the complaint should be dismissed for want of equity jurisdiction. 2. Whether Title I I of the Civil Rights Act of 1964 is constitutional insofar as it prohibits racial discrimination by a restaurant “if * * * a substan tial portion of the food which it serves * * * has moved in commerce.” STATUTES INVOLVED The relevant statutory provisions are printed in Appendix A to the government’s brief in the com panion Heart of Atlanta case, No. 515. STATEMENT On July 2, 1964, the President of the United States signed into law the Civil Rights Act of 1964. On July 3, 1964, certain unnamed and otherwise unidentified Negroes allegedly entered “Ollie’s Barbecue”, oper ated by appellees in Birmingham, Alabama. They requested, but were refused, service at the meal coun ter; instead, they were offered “take-out” service at the “colored take-out” end of the counter (R. 87-88). Although the federal government had had no com munication with appellees concerning compliance with the Civil Rights Act of 1964, appellees, on July 31, 1964, filed a complaint in the United States District Court for the Northern District of Alabama to pro hibit appellants from enforcing or attempting to en force the Act against them. 3 The complaint contains the following allegations: Appellees’ restaurant serves approximately 500,000 meals annually and has gross sales of $350,000 (R. 2). The establishment serves food and non-alcoholic beverages, but specializes in barbecued meats and pies which account for 90% of the business (R. 2). There is parking space on the premises for about 90 automobiles and the seating capacity of the restaurant is about 200 persons. Appellees have 36 employees, 26 Negro and 10 white (R. 2). “Ollie’s Barbecue” is located in a part of Birming ham “largely occupied by Negro residences, and by industrial concerns employing a large number of Negro employees” (R. 4). There is a truck route one block away; the nearest “Federal or Interstate” highway is 11 blocks away; the railroad station 17 blocks; the bus station 20 blocks; and the airport more than five miles (R. 2). Appellees “do no advertising and make no effort to attract transient customers” (R. 2). The restau rant “derives no trade” from the truck route and, to their knowledge, appellees serve no interstate travelers (R. 2). Negroes have never been served food or beverages for consumption on the premises but have been served for many years on a “take-out” basis (R. 3, 4). I f Negroes were allowed service for con sumption on the premises, they would occupy appel lees’ restaurant in large numbers, to the exclusion of appellees’ regular customers (R. 5). Appellees’ busi ness and property would thereby suffer great injury (R. 5). 4 The restaurant is described by appellees as “essenti ally local in character,” purchasing all of its food “within the State of Alabama” (R. 2, 5). Although “some of the food served” by appellees “probably originates in some form outside the State of Ala bama”, the operation of the restaurant, it was averred, “in no way affects interstate commerce” (R;. 6).2 The complaint further averred that the Civil Rights Act of 1964 exceeds the power granted to Congress under the commerce clause; that enforcement of the Act would deprive them of property without due process of law; that to require appellees to serve per sons they had not chosen to serve would constitute “involuntary servitude;” and that “any effort to en force said Act against these [appellees] would be invalid, in contravention of natural law and in viola tion of the Tenth Amendment of said Constitu tion” (R. 6-7). Appellees state additionally that the Attorney Gen eral and his subordinates are enforcing the Act against others in reliance upon the provision “that a restaurant’s operations ‘affect commerce’ if a sub stantial portion of the food which it serves has merely moved in commerce” (R. 5). They assert that “ [t]here is a real and genuine threat” that appellants will seek to apply it to them and that they have “no adequate remedy in law” (R. 7). 2 After appellants had moved to dismiss on the groimd, inter alia, that there was no case or controversy, appellees produced testimony and affidavits indicating that the meat products which they purchased for use originate outside the State of Alabama, thus bringing themselves within the language of section 201(c) (2) of the Act. 5 On August 4, 1964, a three-judge court was desig nated. On the following day, a hearing was sched uled for September 1, 1964 on appellees’ prayer for a temporary injunction (R. 11,12). On August 19,1964, appellants filed a motion to dismiss, asserting that the court lacked equitable jurisdiction because appellees had an adequate remedy of law by way of a defense to a proceeding under Title I I of the Civil Rights Act of 1964 (R. 16-17). On August 21, 1964, appellees filed an amendment to their complaint, striking references to I Oil X DOE AND RUTH ROE, unidentified private defendants. The amendment added the claim that the Civil Rights Act of 1964 violated appellees’ rights under the First Amendment (R. 18-19). On September 1, 1964, a hearing was held on the appellants ’ motion to dismiss and on appellees ’ prayer for a preliminary injunction. The only witnesses were the appellees. Their testimony largely repeats the allegations of their complaint. However, in tes tifying that the nearest interstate highway was 11 blocks from his restaurant, Ollie McClung, Sr., ac knowledged that there was a State highway which passed directly by his restaurant and intersected the interstate highway (R. 71). He also stated that he had declined service to Negroes because of their race (R. 77); that most of the restaurants in Birmingham had served Negroes since the Civil Rights Bill was signed on July 2, 1964; that one of them had lost 25 percent of its business ; and that he had not heard from any representative of the federal government concerning compliance with the Civil Rights Act 6 (R. 78, 86). Ollie MeClung, Jr., testified that on July 3, 1964, a group of Negroes requested counter service at the restaurant and were refused because “ it wasn’t our policy to serve them there and they got up and left” (R. 88). An affidavit was intro duced to the effect that all of the meat sold to appel lees by their principal supplier, valued at $69,683 for the past twelve months and constituting 46 per cent of all its purchases, was procured from facilities located outside the State of Alabama (R. 31-32). On September 17, 1964, the three-judge court ruled that Title I I of the Act is unconstitutional as applied to appellees and enjoined appellants from enforcing it against them pending further order of the court. The court found that a substantial portion of the food served by appellees had moved in commerce and that they were therefore within the terms of the statute. I t stated that since Title I I imposed a mandatory duty of service upon appellees and since the Attorney General was engaged in enforcing it according to its terms, the prospect of its application to appellees was “reasonably imminent.” Turning to the question whether the Act was a proper exercise of the com merce power, the court reasoned that the out-of- State supplies handled by appellees had come to rest before they were sold by the restaurant and that there was no basis for concluding that there was any “demonstrable causal connection” between the activi ties of the restaurant and interstate commerce.3 In 3 The court had previously ruled that the legislative power conferred by the Fourteenth Amendment was not in point since there was no showing that the State of Alabama was in- these circumstances, the court stated, application of the Act to appellees would violate the Fifth Amendment. SUM M ARY OF ARGUMENT I The complaint should he dismissed for want of equity jurisdiction. Title I I of the Civil Rights Act of 1964 provides for enforcement only by a civil action for an injunction, at which point all factual and legal defenses can be raised. The Act authorizes no criminal prosecution and provides for no civil penalties. There is no provision for the award of damages to any person. In this case there has been no threat to seek an injunction against appellees; be fore they filed suit the Department of Justice did not even know of their existence. Appellees claim that they would be injured by compliance but they deny any intent to comply and they neither alleged nor proved that the Act operated ex proprio vigore to discourage patronage and thus injure their business. In short, this is a suit seeking to enjoin a possible suit for an injimction not even threatened. There is no precedent for adjudicating constitu tional issues in such an action. Even where the stat ute provides criminal penalties, the imminence of prosecution “is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordi- volved in appellees’ decision not to serve Negroes. The B ir mingham restaurant segregation ordinance involved in Gober v. Gity o f Birmingham, 373 TJ.S. 374, was repealed on July 26, 1963 (Ordinance No. 63-15). 7 8 nance on which the prosecution is based may be de termined as readily in the criminal case as in a suit for an injunction.” Douglas v. City of Jeannette, 319 U.S. 157, 163. There are three reasons for that rule, which apply with still greater force where there is no shadow of present injury and the statute provides no penalties. First, the judicial branch will not adjudicate ques tions of constitutionality in the absence of a clear need. Second, permitting such suits would interfere with the normal processes of law enforcement by compelling the Department of Justice to expend its substance in defending unnecessary cases instead of applying its resources in the manner best calculated to promote the public interest. Third, a rule allow ing suits to enjoin enforcement of the Civil Rights Act could not be confined to that statute alone but would extend at least to all other regulatory laws, State and federal, when challenged on constitutional grounds. The potentiality for damaging interference with the normal administration of government is obvious. I I Section 201 of the Civil Rights Act of 1964, both in general and as applied to appellees’ restaurant, is a valid exercise of the constitutional power to regu late interstate commerce. The power to regulate interstate commerce extends to local activities which are not part of the stream of commerce but whose regulation is appropriate to foster and promote commerce, or to protect it from 9 burdens or obstructions. This principle is estab lished by a wealth of decisions in this Court extend ing back to Gibbons v. Ogden, 9 'Wheat. 1. Both this Court and inferior courts have repeatedly applied the principle to federal regulation of the activities of retail establishments, including restaurants, where those activities would burden or obstruct interstate commerce. The critical inquiry in the present case, therefore, is whether racial discrimination in a local restaurant, as a matter of fact, burdens or obstructs the movement of goods in interstate commerce. That practical inquiry is primarily for Congress, and its action is binding unless it appears to have no reasonable relation to the authorized end. Here, the evidence before Congress gave it ample ground for concluding that racial discrimination in places of pub lic accommodation that receive goods from out-of- State sources, including restaurants, is a prolific source of disputes and demonstrations sharply cur tailing their business activities and reducing their purchases of out-of-State goods. In addition, the practice of racial discrimination in places of public accommodation was shown drastically to curtail the retail market and thus to restrict the demand for out-of-State goods. I t is irrelevant that the volume of goods purchased by appellees’ restaurant, viewed in isolation, has scant effect upon the total volume of goods moving in interstate commerce. Congress was entitled to take into account the fact that each individual situation was representative of many others throughout the 746—011— 64----------2 10 country, the total incidence of which would be far- reaching in its impact upon commerce. I t was also entitled to judge the importance of the commercial relationship between racial discrimination in restau rants and the interstate flow of goods in the light of the evidence that the discrimination and resulting threat of disturbances at any one establishment are part of a complex and interrelated national problem. The absence of an explicit recital that Congress found that racial discrimination in places of public accommodation burdens interstate commerce does not warrant the conclusion, drawn in the opinion be low, “that Congress has sought to put an end to racial discrimination in all restaurants wherever situated regardless of whether there is any demonstra ble causal connection between the activity of the par ticular restaurant * * * and interstate commerce” (R. 48). Except where it was dealing with discrimi nation supported by State action in violation of the Fourteenth Amendment, Congress prohibited discrimi nation only in those establishments which have a close and intimate tie to interstate commerce—in the case of restaurants, through serving food which comes from out of State ( Section 201 (d) ). We think this amounts to a declared finding that in such establishments racial discrimination burdens and obstructs interstate com merce. But even if that affirmative inference is un warranted, the reasoning below has a fatal gap. Those challenging the constitutionality of an Act of Congress must show “ that by no reasonable possibility can the challenged legislation fall within the wide range of dis cretion permitted to the Congress” (United States v. 11 Butler, 297 U.S. 1, 67). Formal findings may aid the Court to understand the predicate of particular legis lation but “ [ejven in the absence of such aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pro nounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and ex perience of the legislators” (United States v. Carotene Products Co., 304 U.S. 144, 152). Appellees have not only failed to make such a showing but the factual support for the legislation affirmatively appears. For is Title I I invalidated by the absence of pro vision for an administrative or judicial finding whether discrimination in an individual restaurant affects interstate commerce. United States v. Darby, 312 U.S. 100, 120-121; Labor Board v. Reliance Fuel Co., 371 U.S. 2244 ARGUMENT In the court below the government urged (1) that the bill should be dismissed for want of jurisdiction upon several grounds, among others because equity would not enjoin the enforcement of a statute where there was no threat to apply it to the plaintiff and no danger of injury; and (2) that if the district court * * The arguments presented by appellees under the First, Fifth, Ninth, Tenth and Thirteenth Amendments are answered, so far as appears necessary, in our brief in Heart of Atlanta Motel, Inc. v. United States, "So. 515, this Term. 12 readied, the merits, Title I I of the Civil Rights Act of 1964 should be held constitutional. Prom the standpoint of the immediate administra tion of the Civil Rights Act we would welcome a de cision upon the constitutionality of Title II as ap plied to establishments like appellees’ restaurant. The decision below, however, sustaining the power of a district court to render an opinion upon the consti tutionality of a federal statute upon the bare request of any person who alleges that he is subject to the Act, without any showing of irreparable injury, threatens such serious interference with the normal operations of the government as to require us to insist upon the jurisdictional objection in addition to argu ing the merits. I THE COMPLAINT SHOULD BE DISMISSED FOB WANT OF EQUITY JURISDICTION In the present case plaintiffs sued only to enjoin a possible future suit for an injunction. Prior to the filing of suit neither the Attorney General nor the De partment of Justice even knew of the plaintiffs’ exist ence, much less any of the facts bearing upon the coverage of their restaurant under Section 201(c) (2) and their compliance with Section 201 (a). The only possible sanction that anyone can invoke against them is a civil action to compel future compliance. We know of no precedent for such a superfluous action. Plaintiffs cannot be harmed by waiting to as sert their contentions as defenses if and when the At torney General (or a private party) seeks to enforce 13 the statute. Present relief is not only quite unneces sary, therefore, to protect their interests; it is also affirmatively harmful to the recognized and significant public interest in avoiding premature decision of con stitutional questions and in allowing authorized offi cials to exercise an informed discretion in administer ing regulatory legislation. A. The Civil Rights Act of 1964 was carefully drawn so as to ensure that no proprietor of a “ place of public accommodation” would be subjected to any sanction or liability until after the applicability of Title I I to his business had been determined in a dis trict court proceeding for an injunction with full op portunity for appellate review. Title I I provides only for enforcement by a civil action for an injunc tion. There are no criminal or civil penalties. There is no provision for the award of damages. Section 207(b) provides explicitly that “ [t]he remedies pro vided in the title shall be the exclusive means of en forcing the rights based on this title * * *.” 5 Appel lees can incur no legal sanctions until (1) their rights and duties under the Constitution and statute have been determined in the federal courts and (2) they have been ordered to comply with the statute. They are not even subjected to the familiar choice of obey ing the statute or incurring the risk of prosecution. There neither is nor could be a showing that the mere existence of the statute and the general intention of the Attorney General to enforce it subjects ap 5 I t is possible that if outsiders conspire to prevent a restau rant from complying with Section 201, they can be prosecuted under 18 U.S.C. 241. 14 pellees to a threat of irreparable injury. Appellees contend that the statute is void because it is uncon stitutional and allege that their business and property would suffer if they complied with the statute (Com plaint, par. 7) ; but they are not currently complying, do not intend to comply, and incur no risk of any sanctions for failure to comply until after their rights and duties have been determined in judicial proceedings. There is also an allegation that “ [enforcement, or attempts to enforce said Act against plaintiffs by either defendants or by other so-called ‘aggrieved’ persons would subject plaintiffs to the burdens, inconvenience and expense of litiga tion and the aggravation of such burdens and ex penses occasioned by a potential multiplicity of suits” (Complaint, par. 8). This allegation will not survive analysis. An enforcement suit by the Attorney Gen eral, if one were brought, could subject appellees to no greater trouble or expense than their own suit against the Attorney General; indeed, from appellees’ standpoint, the former expense was contingent at worst whereas by prosecution of this action they insisted upon incurring those costs. And an injunc tion issued against the Attorney General would not bar suits by aggrieved persons. The grounds of the decision might discourage future litigation, but no more so than would the grounds of decision in the first suit for an injunction brought against appellees under the statute. The likelihood or unlikelihood of a multiplicity of suits is identical in both circum stances. Nor is the possibility that an unknown per son, at some unknown future time, may file some 15 unidentified suit, based perhaps upon new conditions^ a sufficient ground for equitable relief. In sum, appellees have failed to show irreparable injury or other grounds for an injunction, because they have an entirely adequate remedy in the defense of any action for an injunction that the Attorney General may bring against them. The complaint is no more than a request for an immediate advisory opinion upon the constitutionality of Title I I of the Civil Rights Act, having no foundation other than the possibility that the Attorney General may, at some future date, seek an injunction requiring appellees prospectively to comply with the Act. Whether that be enough for a “ case or controversy” may be open to argument, but it is plainly insufficient to support equity jurisdiction in a suit intended to determine the constitutionality of a federal statute. B. In a case wdiere a party seeks to enjoin enforce ment of a law on constitutional grounds, the courts are insistent not only that his claim be concrete and ripe, but that he be able to show the threat of immediate, irreparable injury which makes it neces sary for equity to intervene without delay. Speaking of a suit to enjoin a State regulatory law imposing criminal sanctions, Chief Justice Hughes stated in Spielman Motor Co. v. Dodge, 295 TJ.S. 89, 95: The general rule is that equity will not inter fere to prevent the enforcement of a criminal statute even though unconstitutional. Hygrade Provision Co. v. Sherman, 266 TJ.S. 497, 500. See, also, In re Sawyer, 124 U.S. 200, 209-211; Davis & Farnum Manufacturing Co. v. Los 16 Angeles, 189 U.S. 207, 217. To justify such interference there must he exceptional circum stances and a clear showing that an injunction is necessary in order to afford adequate pro tection of constitutional rights. See Terrace v. Thompson, 263 U.S. 197, 214; Packard v. Banton, 264 U.S. 140,143; Tyson v. Banton, 273 U.S. 418, 428; Cline v. Frink Dairy Co., 274 U.S. 445, 452; Ex parte Young, 209 U.S. 123, 161-162. We have said that it must appear that “the danger of irreparable loss is both great and immediate” ; otherwise, the accused should first set up his defense in the state court, even though the validity of a statute is chal lenged. * * * The point was restated by Chief Justice Stone in Douglas v. City of Jeannette, 319 U.S. 157, 163-164: I t is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its immi nence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitu tionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. Similarly, the courts have repeatedly refused to enjoin federal officials from proceeding against vio lations of federal statutes. E.g., Yarnell v. Hills borough Packing Co., 70 F. 2d 435 (C.A. 5) ; Ryan v. Amazon Petroleum Corp., 71 F. 2d 1, 6 (C.A. 5) ; Richmond Hosiery Mills v. Camp, 74 F. 2d 200 (C.A. 17 5) ; Sparks v. Mellwood Dairy, 74 F. 2d 695 (C.A. 6) ; Board of Trade of Kansas City v. Milligan, 90 F. 2d 855 (C.A. 8). The mere fact that the government’s law enforcement officers stand ready to perform their enforcement duties under the Act “falls far short of such a threat as would warrant the intervention of equity.” Watson v. Buck, 313 U.S. 387, 400; United Public Workers v. Mitchell, 330 U.S. 75, 88. See, also, Lion Manufacturing Corporation v. Kennedy, 330 F. 2d 833 (C.A. D.C.). These are some cases which indicate a softening of the requirement that the danger of irreparable loss be both “great and immediate.” E.g., Browder v. Gayle, 142 F. Supp. 707, affirmed, 352 U.S. 902, and Croivn Kosher Supermarket v. Gallagher, 176 F. Supp. 466, reversed on other grounds, 366 U.S. 617. Possibly Wickard v. Filburn, 317 U.S. I l l , was such a case, although the point is not discussed in the opin ion. We know of no decision, however, remotely sug gesting that the bare allegation that one is covered by an allegedly unconstitutional statute providing no penalties and creating no sanctions save a possible action for prospective relief is sufficient to obtain an injunction against the normal processes of law en forcement. To such a case as this, therefore, the three considerations opposed to anticipatory interven tion by equity with the processes of law enforcement through criminal prosecution apply with still greater force. First, the judicial branch will not adjudicate ques tions of constitutionality in the absence of necessity. 18 “I t must be evident to any one that the power to de clare a legislative enactment void is one which the judge, conscious of the fallibility of the human judg ment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. ’ ’ 1 Cooley, Con- stitutional Limitations (8th ed.), p. 332, quoted by Mr. Justice Brandeis concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 345. The principle is exemplified by familiar precepts: the Court will not pass upon the constitutionality of leg islation in a friendly, non-adversary proceeding;6 or when the ease may be decided upon another ground; 7 or when the action is brought by one who fails to show that he has been injured by the opera tion of the statute.8 The basic policy is also imple mented by the rule barring injunction against the enforcement of a statute by public officials where the complainant, without risk of irreparable injury, could wait and raise his constitutional defense in any action brought against him. Second, the rule is necessary to prevent interfer ence with the normal processes of law enforcement. I f the possibility that appellees might be sued by the Attorney General to compel them to comply with the statute at some indeterminate future date were e E.g., Chicago <& Grand Trunk Ry. v. 'Wellman, 143 U.S. 339, 345. 7 E.g., Siler v. Louisville and Nashville R. Co., 213 U.S. 175, 191; Berea College v. Kentucky, 211 U.S. 45, 53. 8 E.g., Tyler v. Judges of the Court of Registration, 179 U.S. 405 ; Hendrick v. Maryland, 235 U.S. 610, 621. 19 sufficient predicate for them to bring action against the Attorney General, any proprietor of any place of public accommodation in the United States, who is potentially subject to the Civil Rights Act of 1964, could seek an advisory determination as to whether the statute could be constitutionally applied to him. The resources of the government are not unlimited. I t is essential that the time and funds available for enforcement be allocated in a manner that will best promote the public interest. The necessity of de fending every case in which one potentially subject to the statute desires an advisory opinion upon its constitutionality would interfere significantly with the normal processes of law enforcement. The facts in the present case are particularly strik ing. There were, in 1958 (the last year for which published Census figures are available),9 over 115,000 restaurants, lunch counters, and gasoline stations in 16 Southern or border States 10 which, if they meet the statutory test of “affecting commerce,” as most will, are places of public accommodation under Sec tion 201(b)(2) of the 1964 Act. There are, in addi tion, about 20,000 hotels and motels in these States which fall under Section 201(b)(1), and another 6,000 motion picture theaters which fall under Sec tion 201(b)(3). The Civil Rights Division of the 9 The 1958 Census of Business, compiled by the U.S. Bureau of the Census. A similar study was made during 1963, but it has not yet been published. 10 Texas, Louisiana, Oklahoma, Arkansas, Mississippi, Ala bama, Tennessee, Kentucky, Florida, Georgia, South Carolina, North Carolina, Virginia, West Virginia, Maryland, Delaware. 20 Department of Justice lias 55 lawyers to handle liti gation under Title II, as well as all the other titles of the 1964 Act, the 1960 Act,11 the 1957 Act,12 and the early federal civil rights statutes.13 I t is hardly nec essary to point out the import of these facts. The Department of Justice can only perform its functions under these statutes if it is free to select carefully the. cases it will bring so as to use its limited man power in the most effective way. The decision as to which cases will be litigated, and where and when, cannot be left to the private parties subject to the public accommodations provision of the 1964 Act. There are other important administrative considera tions. Congress has provided in Title X of the 1964 Act for a Community Relations Service, now headed by Governor Leroy Collins, which is intended “ to pro vide assistance to communities and persons therein in resolving disputes, disagreements, or difficulties relating to discriminatory practices based ion race * * V ’ 78 Stat. 267. I t is hoped that this ap proach-voluntary negotiation and discussion—will avoid the necessity of numerous legal proceedings under Title II. The Department of Justice can co ordinate its enforcement activities under Title I I with the activities of the Director of the Community Relations Service under Title X, but the efforts of the Community Relations Service could be under mined by untimely suits by those opposed to the 11 74 Stat. 86. 12 71 Stat. 637. 1318 U.S.C. 241, 242. 2 1 provisions of the statute and equally opposed to volun tary compliance with desegregation. Third, a rule allowing suit to enjoin enforcement of the Civil Rights Act, even though the plaintiff would be in no way harmed by awaiting the outcome of the statutory proceedings, could not be confined to this statute alone. The same principle would be applicable under any other regulatory statute, such as the Rational Labor Relations Act, the Fair Labor Standards Act, the Securities and Exchange Commis sion Act, etc. The potentiality for interference with the normal administration of such laws is obvious. Nor do we see how the principle, once established, could be confined to suits raising constitutional issues, unless upon the ground that the action is against the United States where it is not alleged that the Attor ney General is acting without constitutional author ity.14 There would seem to be no less ground for asserting equitable jurisdiction in the case of a claim that a regulatory statute did not apply to a complain ant against whom it might be enforced, or did not outlaw his conduct, or otherwise bear an interpreta tion which the government might put upon it. C. The eases cited by the court below give no sup port to the assertion of equity jurisdiction to enjoin the enforcement of Title II. Each involved a threat of immediate substantial injury to the plaintiff; none even approached the present case, where the plaintiff cannot be harmed by awaiting any proceedings 14 See Brief for the Respondent in Rabinowitz v. Kennedy, Attorney General, No. 287, October Term, 1963, pp. 39-40. 22 against him. Indeed, the cases cited do not even pro vide authority for the proposition that a person sub ject to a regulatory statute with immediate penal sanctions can obtain an adjudication as to the con stitutionality of the statute without incurring the risk of violation. The majority of the cases presented situations like that in Terrace v. Thompson, 263 17. S. 197, where the existence of the statute imposing severe penalties and forfeiture of the land upon one who leased farm ing land to an alien who had not declared an intention to become a citizen, and also upon the alien who acquired an interest in the land, operated ex proprio vigore to interfere with the owner’s right to dispose of his property and the alien’s right to pursue the occupation of farmer (263 U.S. 215-216): The threatened enforcement of the law deters them. In order to obtain a remedy at law, the owners, even if they would take the risk of fine, imprisonment and loss of property, must continue to suffer deprivation of their right to dispose of or lease their land to any such alien until one is found who will join them in violating the terms of the enactment and take the risk of forfeiture. Similarly Nakatsuka must continue to be deprived of his right to follow his occupation as farmer until a land owner is found who is willing to make a forbidden transfer of land and take the risk of punishment. The owners have an interest in the freedom of the alien, and he has an interest in their freedom, to make the lease. The same kind of interference with an advanta geous relationship for which there was no adequate 23 remedy at law was proved in Pierce v. Society of Sisters, 268 U.S. 510; Euclid v. Ambler Realty Go., 272 U.S. 365; and Public Utilities Commission of California v. United States, 355 U.S. 534.10 The plaintiff’s interest in, and need for, an equitable remedy is obvious where the statute imposes criminal penalties on those engaged in business dealings with the plaintiff unless they discontinue their dealings. Then there is no adequate remedy at law, for the plaintiff cannot require those dealing with him to risk criminal penalties to test the validity of the statute. In Pennsylvania v. West Virginia, 262 U.S. 553, both States were seeking to withdraw natural gas from the same pool under circumstances in which the with drawal by one would cause widespread injury in the other. Carter v. Carter Coal Co., 298 U.S. 238, was not a suit against the Attorney General to enjoin en forcement but a minority stockholder’s bill to enjoin the corporation from complying with the statute; in any event, irreparable harm was threatened. The point was not raised in Adler v. Board of Education, 342 U.S. 485, undoubtedly because the action had been brought in a State court and presented no question of federal equity jurisdiction. In Currin v. Wallace, 15 15 In Public Utilities Commission of California v. United States, 355 U.S. 534, the Court did not discuss the irreparable injury, but the theory of equity jurisdiction clearly appears from the Brief for the United States, No. 23, October Term 1&57, pp. 23, 27. 24 306 U.S. 1, the opinion of the lower court clearly shows that the plaintiffs would have incurred penal ties “which would be ruinous to them” if they violated the statute and its constitutionality were.upheld (95 F. 2d 856, 861). In short, none of the cases relied upon by the court below provide support for the pres ent case, where the plaintiffs have not even shown that they have been harmed in any way by the operation of the statute. I I SECTION 201 OP THE CIVIL RIGHTS ACT OF 1964 , AS AP PLIED TO a p p e l l e e ’s RESTAURANT, IS A VALID EXERCISE OF THE COMMERCE POWER In our brief in Heart of Atlanta Motel, Inc. v. United States, Ho. 515, this Term, we outlined the general plan of Title I I of the Civil Rights Act of 1964 which grants all persons a right to the full and equal enjoyment of the goods, services or facilities of any “place of public accommodation” as defined therein, and we endeavored to show that, both in gen eral plan and in specific application to hotels and motels, Title I I is a valid exercise of the power to regulate interstate commerce. In this case we deal with the application of Title I I to a restaurant which serves the general public and receives the products which it sells from other States.16 Section 201 (b) and (c) define as a place of public accommodation subject to the duty to make its goods, 16 The challenges to Title I I based upon the Fifth, Ninth, Tenth and Thirteenth Amendments are answered in our Heart of Atlanta brief. Appellees’ argument based upon the First Amendment requires no response. - - 25 services and facilities available without regard to race or color— any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility engaged in selling food for consumption on the premises if— a substantial portion of the food which it serves * * * has moved in commerce. Appellees allege that their restaurant is covered by the foregoing provision and that they are, neverthe less, engaged in racial discrimination. We accept the allegations. The district court found that in the twelve months preceding the passage of the Civil Eights Act of 1964 appellees purchased approximately $150,000 worth of food locally, but that about 46 per cent of its purchases were meat which had been shipped in to the local packer and -wholesaler from outside the State of Alabama (E. 36). The govern ment on its part agreed in the lower court that the discrimination at appellees’ restaurant was not being supported by the State of Alabama within the mean ing of Section 201(d). Thus, the question is whether Title II, as applied to a restaurant receiving about $70,000 worth of food indirectly from outside the State, is a valid exercise of the power of Congress to regulate interstate commerce (Art. I, Sec. 8, cl. 3) and to enact all laws necessary and proper for the execution of the commerce power (Art. I, Sec. 8, cl. 18). The Civil Rights Cases, 109 U.S. 3, throw no light upon the issue because the Civil Eights Act of 748 011 - 8-5— ----8 26 1875, 18 Stat. 335, was not conceived or sought to be justified under the commerce power.17 The major premise of our argument is the familiar rule that the powers thus delegated to Congress ex tend to local activities, even though they are not themselves interstate commerce, if they have such a close and substantial relation to interstate commerce that their regulation is appropriate to foster or pro mote such commerce, or to relieve it from burdens or obstructions. The minor premise of our argument is that Congress, to which the economic question is primarily committed, had ample basis upon which to find that racial discrimination at restaurants which receive from out-of-State a substantial portion of. the food served does in fact impose commercial burdens of national magnitude upon interstate commerce. 17 The opinion below states that the court had been advised that the Solicitor General, in brief, had urged upon the Su preme Court the sufficiency of the grant of power in the com merce clause to sustain the challenged legislation. Evidently the court was partially misinformed. The brief filed by Solici tor General Phillips at the October Term, 1882, makes no such argument, nor is any contained in the summary of his oral argument in the United States Eeports, 109 U.S. 3, 5-7. At the October Term, 1879, a brief had been filed in three of the cases by Attorney General Devens. One sentence stated that inns were essential instrumentalities of commerce, which it was the province of the United States to regulate prior to the Civil War amendments. This appears to have been a passing comment for the entire thrust of the brief lies in the proposi tion that the power to enact the Civil Eights Act of 1875 was granted by Section 5 of the Fourteenth Amendment. 27 A. TH E POWER TO REGULATE INTERSTATE COMMERCE EXTENDS TO LOCAL ACTIVITIES WHOSE REGULATION IS APPROPRIATE TO PRO TECT INTERSTATE COMMERCE PROM BURDENS OR OBSTRUCTIONS 1. The power of Congress is not confined to the regulation of the course of interstate commerce but extends to matters sub stantially affecting it Article I, Section 8, clause 3 confers upon Con gress the power “To regulate Commerce * * * among the several States.” Clause 18 of the same Article grants the power “ To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * Under those provi sions the Congress has ample power not only to regu late interstate travel, transportation' and communi cation, but also to deal with other matters which sub stantially affect such commerce even though they might be local when viewed in isolation. “The com merce power,” Chief Justice Stone held for a unani mous court in United States v. Wrightwood Dairy Go., 315 U.S. 110, 119, “is not confined in its exercise to the regulation of commerce among the states. I t extends to those activities intrastate. which so affect interstate commerce, or the exertion of the power of Congress over it, as to make the regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.” Mr. Justice Jackson, also speaking for a unanimous court, restated the principle in Wickard v. Filburn, 317 U.S. I l l , 125, in words precisely applicable to the present ease: * * * even'if appellee’s activity be looted and though it may not be regarded as commerce, it 746- 011— 64— 4 28 may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irre spective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.” See, also, Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37; United States v. Darby, 312 U.S. 100, 119; Labor Board v. Reliance Fuel Corp., 371 U.S. 224, 226-227. There is no novelty in this principle, nor was it new in the cases cited above. The principle was established by Chief Justice Marshall, speaking for the Court in Gibbons v. Ogden, 9 Wheat. 1, 195, one hundred and forty years ago: The genius and character of the whole govern ment seem to be, that its action is to be applied to all those external concerns of the nations and to those internal concerns which affect the States generally * * *. [Emphasis added.] In describing the local activities which Congress could not regulate he was careful to exclude from the definition—and thus mark as within the federal commerce power—those local activities which affect other States and with which it is necessary to deal in order to regulate interstate commerce. Thus, he described the local activities removed from federal action as ibid.— those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. . .. 29 Although the subsequent course of decision included some departures from the original principle,18 the prin ciple found frequent application even prior to the Labor Board cases and other decisions cited above. I t was applied to violence shutting down production at a coal mine whence coal might be shipped in inter state commerce, Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, to the activities of a local grain exchange shown to have an injurious effect upon inter state commerce, Chicago Board of Trade v. Olsen, 262 U.S. 1, to regulation of the intrastate rates of interstate carriers, Houston & Texas By. v. iUnited States, 234 U.S. 342; Railroad Comm, of Wisconsin v. Chicago B. & Q. R. Co., 257 U.S. 563, to the safety devices upon rolling stock moving in local commerce, Southern Ry: Co. v. United States, 222 U.S. 20, and to the regulation of hours worked by employees en gaged in intrastate activity related to the movement of any train, Baltimore dc Ohio R. Co. v. Interstate Commerce Commission, 221 U.S. 612. In United 18 The chief departures are United States- v. E. C. Knight, 156 U.S. 1 (rejected in Standard Oil Co. v. United States. 221 U.S. 1, 68-69, and Labor Board v. Jones &Laughlin Steel Gory., 301 U.S. 1, 38-39); Adair v. United States, 208 U .S.'161 (sub stantially overruled in Texas and New Orleans- Railroad v. Brotkmhood of Railway and .Steamship Clerics, 281 U.S; 548; Virginian Railway v. System Federation No. Jfi, 300 U S. 515); Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (dis approved in United States v. Lovyden, 308 U.S. 225, 239); First Employers’ Liability Cases, 207 U.S. 463 (disapproved in Vir ginian Ry. v. System Federation No. 40, 300 U.S. 515, 557), Carter v. Carter Coal Co., 298 U.S. 238 (disapproved in United States v. Darby, 312 U.S. 100, and overruled in Wiolcard v. Fil- burn. 317 U.S. I l l , 122, n. 21); Hammer v. Da.genhart, 247 U.S. 251 (overruled in United States v. Darby, 312 B.S. 100, 117). 30 States v. Ferger, 250 U.S. 199, 203, Mr. Chief Justice White pointed out that the power of Congress “must include the authority to deal with obstructions to inter state commerce (In re Debs, 158 U.S. 564) and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves. ” There was comparatively little federal regulation of interstate commerce in the nineteenth century. The need and therefore the volume of legislation increased greatly in the present century. Furthermore, the in creasing interdependence of all parts of the economy and changes in commercial practices have, in fact, linked to interstate commerce through close and sub stantial connections many activities which, as a matter of fact, had no effect upon such commerce in earlier years. This is the reason the governing principle has found its clearest application in decisions sustaining modern economic legislation. The principle, however, as shown by the Court’s opinion in Gibbons v. Ogden, is.as old as the Constitution itself. '■ g. The. power to regulate local matters substantially affecting interstate commerce extends to retail establishments includ ing restaurants . - A host of familiar precedents sustains the power of Congress to regulate the. activities of retail establish ments, including restaurants,, which directly or indi- * rectly receive goods from out of State,- where those ‘ activities burden or obstruct , interstate commerce. In Labor Board x. Reliance Fuel C'orp,, 371 U.S. 224, this 31 Court held that the National Labor Relations Board had jurisdiction over unfair labor practices committed by a retail distributor of fuel oil, all of whose sales were local, where the retailer obtained the oil from a wholesaler who imported it from another State. That decision accords with a long series of cases basing federal power over the labor relations of a retail busi ness on the threat to the market for interstate goods caused by unfair labor practices that may decrease its purchase of goods originating in other States. See, e.g., Labor Board v. Denver Bldg. Council, 341 U.S. 675, 683-684; May Department Stores Co. v. Labor Board, 326 U.S. 376 (retail store) ; J. L. Bvan- dais & Sons v. Labor Board, 142 F. 2d 977 (C.A. 8), certiorari denied, 323 U.S. 751 (retail store) ; McLeod v. Bakery Drivers Local, 204 P. Supp. 288 (E.D. N.Y.) (bakery) ; Retail Fruit <& Vegetable Union v. Labor Board, 249 P. 2d 591 (C.A. 9) (retail store) ; In t’l Brotherhood v. Labor Board, 341 U.S. 694 (construc tion project) ; Local 74 v. Labor Board, 341 U.S. 707 (store, dwelling renovation) ; Meat Cutters v. Fairlawn Meats, 353 U.S. 20 (retail grocery). In particular, the Labor Board has on many occa sions regulated labor relations in restaurants, on the theory that disputes in restaurants tend to diminish the quantity of food and other products purchased by the restaurant to serve its customers. See, e.g., Labor Board v. Morrison Cafeteria Co. of Little Rock, 311 P. 2d 534 (C.A. 8) ; Labor Board v. Local Joint Exec... Board, 301 P. 2d 149 (C.A. 9) ; Labor Board v. Childs Co., 195 F. 2d 617 (C.A. 2) ; Labor Board v. Laundry 3 2 Drivers Local, 262 F. 2d 617 (C.A. 9); Labor Board v. Gene Compton’s Corp., 262 F. 2d 653 (C.A. 9); Labor Board v. Howard Johnson Co., 317 F. 2d 1 (C.A. 3), certiorari denied, 375 TJ.S. 920; Kennedy v. Los Anegeles Joint Exec. Board, 192 F. Supp. 339 (S.D. Cal.) ; Culinary Workers & Bartenders Union v. Labor Board, 310 F. 2d 853 (C.A.D.C.); Smitley v. Labor Board, 327 F. 2d 351 (C.A. 9) ; Stanton Enter prises, Inc., 147 NLRB No. 81, A CCH Lab. L. Rep. 21,075, para. 13,211; Stork Restaurant, Inc. v. McLeod, 312 F. 2d 105 (C.A. 2) ; McLeod v. Chefs, Cooks, Pastry Cooks & Assistants Union, 280 F. 2d 760 (C.A. 2); McLeod v. Chefs, Cooks, Pastry Cooks & As sistants Local 89, 286 F. 2d 727 (C.A. 2).19 As pointed out in more detail, with appropriate citation of precedents, in our brief in Heart of A t lanta Motel, Inc. v. United States, No. 515, pp. 33-36, the same principle has been applied under the Sher man and Federal Trade Commission Acts. 3. Cases Holding that, interstate commerce ends when goods “come to rest’’' in a State are irrelevant to the power of Congress to regulate local activities which substantially burden interstate commerce Implicit in what we have already said is the dis tinction between the present case and cases holding that interstate commerce ends when goods come to rest in the State of destination. When the issue is whether the goods are immune from State taxation, 19 See also, Brermamls French Restaurant, 129 N.L.R.B. 52; Joe Hunt's Restaurant, 138 N.L.R.B. 470; Childs Co., 88 N.L.R.B 720; Childs Co., 93 N.L.R.B. 281; Bolton & Hay, 100 N.L.R.B. 361; The Stauffer Corp., 101 N.L.R.B. 1331; Mil- Bur, Inc., 94 N.L.R.B. 1161. 33 or whether the States may not regulate the conduct because of the need for uniformity, then it may be pertinent to ask whether the goods have ceased to be part of interstate commerce,20 for the commerce clause does not operate ex proprio vigore to exclude State taxation or State regulation of activities which are not part of, but affect, interstate commerce. The question is not dispositive, however, in judging the reach of the federal power to regulate, for federal power extends, under the principles stated above, to activities which are outside the stream of commerce but substantially affect it. Thus, there are many instances in which a State may tax or regulate goods and activities which are also regulated by federal law. See, e.g., South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177; Mints v. Baldwin, 289 TT.S. 346.21 20 The continued vitality of the “come to rest” doctrine is open to question in the field of State taxation, but the change is towards the enlargement of State power. Compare, e.g., Broton v. Maryland, 12 Wheat. 419, and Hooven <& Allison Co. v. Evatt, 324 U.S. 652, with Woodruff v. Parham., 8 Wall. 123, and Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534. 21 Although a State may tax a retail sale of drugs which were originally imported from other States (Woodruff v. Par ham, 8 Wall. 123), Congress may regulate that sale ( United States v. Sullivan, 332 U.S. 689). While goods stored in a warehouse have come sufficiently to rest to be subject to a State property tax (Woodruff v. Parham, supra), their storage is also subject to federal regulation (United States v. Wieseru- feld Warehouse Co., 376 U.S. 86). In each of these cases the goods have in some sense “come to rest” after an interstate sale and transportation, but the power of Congress to regulate subsequent sales or use of the goods continues. 34 Such cases as Weigle v. Curtice Bros. Co., 248 U.S. 285,; Pacific States Box and Basket Co. v. White, 296 U.S. 176, and Packer Corp. v. Utah, 285 U.S. 105, relied upon by the State of Florida (Brief Amicus Curiae, pp. 30-33), are therefore irrelevant. United States v. Yellow Cab Co., 332 U.S. 218, presented a similar issue (although it was decided in a statutory and not m a constitutional context). Be cause the government did not allege or prove that a monopoly of local taxi service would substantially interfere with or burden other interstate commerce, it was necessary to the government’s case to show that the monopoly was a restraint of the channels of interstate travel itself, i.e., that the taxis which carried passengers to and from the railroad stations as part of a general local business were themselves instrumentalities of interstate commerce. The Court was therefore called upon to “ mark the beginning and end of a particular kind of interstate commerce by its own practical considerations” (332 U.S. at 231), and it concluded that interstate travel began and ended “at the station.” The opinion also makes it clear, however, that the Court did not hold that the business of operating taxis was beyond the scope of federal regulation (id. at 232-233). The latter question depends, as in other cases, upon whether the activities in fact burden or obstruct, or otherwise affect, interstate commerce. Superior Court of Washington v. Yellow Cab Co., 361 U.S. 373, sum marily reversed a State injunction on the ground that the National Labor Relations Board has exclusive 35 jurisdiction over unfair labor practices of a similar taxi service. B. RACIAL DISCI! IM IN AT'ION IN RESTAURANTS SELLING FOOD FROM OUT-OF-STATE SOURCES BURDENS AND OBSTRUCTS INTERSTATE COMMERCE Under the principle developed above, the power of Congress to prohibit racial discrimination in restau rants which receive a substantial portion of the food they serve directly or indirectly from out-of ■‘•State sources depends upon whether such discrimination would in fact burden or obstruct the movement of goods in interstate commerce. What affects com merce is a practical inquiry to be answered from the course of business. Cf. Swift & Go. v. United States, 196 U.S. 375, 398 (“commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business” ). The practical inquiry, moreover, is primarily for Con gress. As the Court said in Norman v. Baltimore and Ohio R. Go., 294 U.S. 240, 311, speaking of whether the gold clauses in private bonds sufficiently interfered with the monetary policy of Congress to justify their invalidation under the power to regulate the currency— Whether they may be deemed to be such an interference depends upon an appraisement of economic conditions and upon determina tions of questions of fact. With respect to those conditions and determinations, the Con gress is entitled to its own judgment. We may inquire whether its action is arbitrary or ca pricious, that is, whether it has reasonable rela 36 tion to a legitimate end. I f it is an appropriate means to such an end, the decision of the Con gress as to the degree of the necessity for the adoption of that means, is final. McCulloch v. Maryland, supra, pp. 421, 423; Juillard v. Greenman, supra, p. 450; Stafford v. Wallace, 258 U.S. 495, 521; Everard’s Breweries v. Bay, 265 U.S. 545, 559, 562. The same rule applies to the commerce clause. The Court held in Stafford v. Wallace, 258 U.S. 495, 521— Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. [Emphasis added.] See, also, Chicago Board of Trade r. Olsen, 262 U.S. 1, 32; Labor Board v. Jones & LaughUn Steel Corp., 301 U.S. 1, 37. The evidence before Congress gave it ample ground for concluding that racial discrimination in restau rants that receive food from out-of-State sources is so prolific a source of burdens and obstructions to inter state commerce as to make the elimination of discrimi nation a reasonable means of promoting the interstate flow of goods. The evidence is presented in our brief in Heart of Atlanta Motel, Inc. v. United States, No. 515, this Term, but we repeat it here (with some addi tions and modifications) for the sake of completeness. In doing so we emphasize that the relationship demonstrated is between the racial discrimination in restaurants and the flow of interstate commerce. We 37 have no need to argue whether the fact that a restau rant serves food which originated in other States is a sufficient basis for the regulation. While we think that it is sufficient, we assume arguendo that the ap pellees were correct, in their brief in the district court, in arguing that the power of Congress to regulate ac tivities affecting commerce (as distinguished from the actual movement of goods in commerce) depends upon a showing that regulation of the activities could reasonably be found adapted to promoting the flow of goods.22 For the prohibition of discrimination in 22 Appellees’ argument was that although Congress has power to regulate the interstate movement of goods and persons en- gaged in interstate travel, transportation or communication for any purpose, i t has power to regulate local activities affecting commerce, especially in the State where the goods are received, only if it appears that the regulation of the local activities fosters the interstate commerce. In this way appellees would distinguish such cases as Mitchell v. United States, 313 U.S. 80; Henderson, v. United States 339 TJ.S. 816; and also such author ities as the Lottery Case, 188 TJ.S. 321; Caminetti v. United States, 242 U.S. 470, and Brooks v. United States, 267 TJ.S. 432. Although we are content to argue the present, case upon the assumption that the power of Congress is thus limited, appel lees’ analysis seems erroneous. The Court has never held that Congress has power to regulate all phases of a man’s conduct solely because he has previously imported goods in interstate commerce, but it has held that Congress may prohibit one who has imported interstate goods from distributing those goods in a way which is damaging to the locality. In United States v. Sullivan, 332 U.S. 689, the Court held, without dissent on this point, that Congress has power to forbid a small retail druggist from selling drugs without the form of label required by the Federal Food, Drag, and Cosmetic Act, 21 U.S.C. 201, et seq., even though the drugs were imported in properly labeled bottles from which they were not removed until put on the shelves of the local retailer. See also Federal Trade Conwvisswn V. Matndel 38 covered restaurants falls squarely within that prop osition. 1. Racial discrimination m restaurants serving food from out- of-State is a prolific source of disputes burdening and ob structing interstate commerce Where a restaurant serves food received from interstate commerce, either directly or indirectly, any dispute involving the establishment which causes it to close or reduces its patronage will curtail its pur chases and thus diminish the flow of goods in inter state commerce. Current history makes plain the tendency of a practice of racial discrimination to produce such disputes with the consequent interrup tion in the flow of goods from other States. The situ ation is the same in principle, therefore, as the count less cases in which the courts have sustained the application of the National Labor Relations Act to establishments receiving goods in interstate com merce on the ground that a labor dispute at such an Bros., 359 U.S. 385; McDermott v. Wisconsin, 228 U.S. 115. The restaurateur practicing racial segregation who purchases food originating in another State for service in a commercial restaurant, is using interstate commerce to perpetuate an evil. While Congress could not regulate his conduct merely because he had imported the goods some time in the past, it can, if it judges discrimination an evil, prohibit, him from using the channels of interstate commerce to bring into the State the goods which are the tools of the discrimination. And where Congress can close the channels of commerce to those using out- of-State goods to pursue an injurious practice, it can also for bid using the goods in the practice itself. Compare United States v. Darby, 312 U.S. 100, 122. See, also, the analysis of Professor Paul A. Freund, S. Rep. 872, 88th Cong., 2d Sess., pp. 82-83. 39 establishment might result in a strike or other con certed activity that would curtail the interstate move ment of goods. See pp. 30-32 above. The commercial problem has had nationwide scope and almost incredible proportions. The Attorney General testified before the Senate Judiciary Com mittee that between May 20 and July 31, 1963 (the date of his testimony) there were 639 demonstrations in 174 cities, 32 States, and the District of Columbia. Of these, 302 were concerned solely with discrimina tion in places of public accommodation.23 Assistant Attorney General Marshall wrote Senator Javits on April 14, 1964, furnishing later figures (110 Cong. Rec, 7980 (daily ed.)). From May 1963 to April 1964, a total of 2,422 racial demonstrations took place, of which 850 arose from disputes about discrimina tion in places of public accommodation. The Mayor of Atlanta, Georgia, testified in favor of enactment that “ [fjailure by Congress to take definite action at this time * * * would start the same old round of squabbles and demonstrations that we have had in the past.” 24 The effect upon business conditions and, therefore, on interstate commerce is obvious. The most immedi ate impact upon restaurants and lunch counters which either refuse to serve Negroes or segregate their facil 23 Hearings before the Committee on the Judiciary, United States Senate, 88th Cong., 1st Sess., on S. 1731, p. 216. 24 Report of the Committee on Commerce, United States Sen ate, on S. 1732, No. 872, 88th Cong., 2d Sess. (February 10, 1961), at 15, 21, quoting Mayor Ivan Allen, Jr. This report- is hereafter cited as “Senate Commerce Report.” 40 ities has come in the form of sit-in demonstrations. The purpose and effect of a sit-in is, of course, to pre vent sales of food as completely as would a strike of the employees of the business. The ultimate result is to eliminate purchases of out-of-State food and sup plies. But sit-ins and their effects represent only the beginning of the forms of demonstration and the im pact on interstate commerce. Under Secretary of Commerce Roosevelt testified that “ [i]t is common knowledge that discrimination in public accommoda tions and demonstrations protesting such discrimina tion have had serious consequences for general busi ness conditions in numerous cities in recent years.” Hearings before the Committee on Commerce, United States. Senate, 88th Cong., 1st Sess., on S. 1732, Part 2, Ser. 27-, at 699.25 The examples he describes are impressive. Retail sales in Birmingham were reported off 30 percent or more during the protest riots in the spring of 1963. Businessmen stated that there were more business failures than during the depression. Down town stores privately reported that their sales in April of that year were off 40 to 50 percent. They were hit first by a Negro boycott and then by a tense atmos phere that kept customers at home or in suburban shops. The Federal Reserve Bank showed depart ment store sales in Birmingham in the four-week period ending May 18, 1963, down 15 percent over the same period in 1962. During the same period, de 25 These bearings are hereafter cited as “Senate Commerce Hearings.”. 41 partment store sales were up in Atlanta, New Orleans, and Jacksonville. Ibid. Other cities suffered similar experiences. In At lanta,. Mr. Roosevelt testified, “after several months of intermittent demonstrations in 1960-1961, and a boycott sparked by student groups to remove racial barriers in lunch counters and department store res taurants, merchants agreed that the Negro boycott of the downtown area was almost 100 percent effective.” Department store sales for a one-week period in February 1961 were down 12 percent from the pre ceding year, according to the Federal Reserve Bank. Senate Commerce Hearings, at 699-700. In Savan nah, lunch-counter discrimination in downtown stores finally ended following “a 15-month boycott of the stores by Negroes * * *.” This boycott “cut retail sales as much as 50 percent in some places.” In the fall of 1962 businessmen in Charlotte, North Carolina, “hit by drives for desegregation of publie accommoda tions, estimated their business was cut by 20 to 40 percent.” In Nashville, Tennessee, a boycott was maintained for seven weeks at 98 percent efficiency .(Senate Commerce Hearings, at 700): Negroes in Nashville spend an estimated $7 million annually downtown and their absence had varying results. In one department store, they represented 12 to 15 percent of the busi ness ; in another department store, 5 percent. The transit company found its revenues dwin dling seriously ; the two newspapers found ad vertising lineage figures falling. “Variety stores,” Mr. Roosevelt continued, “were hit particularly hard. With their lunch counters a 42 sit-in target, even those who did venture downtown avoided the food counters, which sometimes account for as much as 50 percent of the gross profit. Even businessmen not involved in the sit-ins and which had reputations of good service to Negroes found busi ness dropping.” Ibid. I t is evident that such a general downturn in retail business must, if left unchecked, result in serious dis ruption in the flow of goods across State lines. If retail stores cannot sell, they in turn will not buy from wholesalers, who in turn must necessarily re duce their out-of-State purchases. In a highly inter dependent economy, as Congressman McCulloch ob served, “a local disturbance can affect the commerce of an entire State, region, and the country.” 26 Or, as a “top retail executive” said, “ [t]his thing has frightening ramifications. I t is more serious than people realize. I t has now become an economic situation affecting an entire community, the whole city, and the whole country.” 27 Less obvious, but likewise important, is the impact of racial disputes and civil unrest upon the flow of investment. Congress was told of companies which had decided, because of such disputes, not to open plants and offices in Birmingham and Montgomery.28 Congressman McCulloch, summarizing the evidence, stated: “The segregation of public accommodations 26 “Additional Views” of Congressmen McCulloch, Lindsay, and other Republican committee members, filed in support of the Report of the House Judiciary Committee, 88th Cong., 1st Sess., No. 914, Part 2, on PI.R. 7152 (December 2, 1963) at 12.. This document is hereafter cited as “Additional Views.” 43 and other sources of racial unrest in Birmingham, Ala,, have induced many businesses to reconsider their plans to move into or to expand their existing operations in the area.” Additional Views, supra, at 12. The story had been the same in Little Rock. As Under Secretary Roosevelt testified (Senate Com merce Hearings, at 699) : In the 2 years before the crisis over schools and desegregation of public accommodations erupted into violence in Little Rock in Sep tember 1957, industrial investments totaled $248 million in Arkansas. During the period, Little Rock alone gained 10 new plants, worth $3.4 million, which added 1,072 jobs in the eity. In the 2 years after the turbulence which brought Federal troops to the city, not a single company employing more than 15 workers moved into the Little Rock area. Industrial investments in the State as a whole dropped to $190 million from $248 million of the 2 years before desegregation. The Secretary of Labor drew this conclusion (Sen ate Commerce Hearings, at 623) : Industry is discouraged from locating or ex panding in communities where equal oppor tunity does not exist and incidents have taken place or are likely to occur. Lack of equal 27 Report of the Legislative Reference Service, Library of Congress, to the Chairman of the Senate Commerce Committee, “An Episode Account of Economic Effect of Segregation and Re sistance to Segregation in the South,” Senate Commerce Hear ings, at 1384. 28 Id. at 1385. 74& - 011-— 64— -5 44 facilities for employees and even the latent possibility of demonstrations often removes the locality from consideration as a site for com mercial or industrial expansion. This affects industrial development regionally and nation ally by limiting the flexibility and free choice of business and hampering labor mobility. 2. Racial discrimination in restaurants serving food from out of State artificially restricts the market for goods moving in interstate commerce The reduction in the business-—and therefore in the purchases of goods from other States—-of a res taurant which is involved in a racial dispute is not the only, or even the most direct, effect upon inter state commerce caused by racial discrimination. A second and still more direct link between discrimi nation and interstate commerce is the reduction in the number of potential customers caused by the dis couragement of Negro patronage—-which in turn re duces the quantity of goods purchased through inter state channels. As the Attorney General testified (,Senate Commerce Hearings, at 18-19) : “Discrimi nation by retail stores which deal in goods obtained through interstate commerce puts an artificial restric tion on the market and interferes with the natural flow of merchandise. ’ ’ See, also, testimony of Senator Magnuson, 110 Cong. Rec. 7174 (daily ed.). I t is clear that the aggregate effect of racial dis crimination by restaurants is substantially to restrict the market for food. Indeed, that is simply a tru ism. Not only do established businesses sell less but many new businesses are not opened, because of the narrowed market resulting from the exclusionary 45 practices. This restriction on the market, in turn, retards the flow of goods in interstate channels. To avoid that result Congress may go to the cause. The testimony of Under Secretary Roosevelt is re vealing with respect to the effect of policies of racial exclusion in retail establishments, including restau rants, on the scope of the market for food and other products. His testimony was that Negroes spend less money per capita, after discounting income dif ferences, than do whites in restaurants, theaters, and the like, and that the disparity is especially aggra vated in the South where such exclusionary practices are widespread. He attributed this to racial discrim ination. Senate Commerce Hearings, at 695. The Under Secretary illustrated the point by show ing that “Negroes in large northern cities spend more than southern Negroes of the same income class in all of these expenditure categories [i.e., res taurants, theaters, recreational facilities, hotels, motels] * '* *, even though white families in north ern cities spend less than similar families in south ern cities.” “In the same income group,” he said, “northern Negroes spend more than northern whites for [theaters and recreation], but southern Negroes spend less than southern whites and northern Ne groes. Negroes in both the North and South spend less on ‘Food eaten away from home’ than white peo ple in the same income groups, but the difference is much greater in the South.” Ibid.29 29 The statistics furnished Congress by the Commerce De partment are set out in Appendix B to Brief for the United States in Heart of Atlanta Motel, Inc. v. United States, No. 515, p. 70. 46 The Secretary of Labor gave similar testimony. Senate Commerce Hearings, at 623, 624, 626, 630. The district court, citing Tot v. United States, 319 U.S. 463, 467-468, seems to suggest that to legislate upon the ground that there is a relationship between racial discrimination in places of public accommoda tion and interstate commerce is unconstitutional “be cause of lack of connection between the two in com mon experience” (R. 49). We submit, with due re spect, that the evidence before Congress shows that the court’s declaration flies in the face of established fact. I t is obvious, of course, that the volume of goods purchased by any restaurant, viewed in isolation, has scant effect upon the total volume of goods moving in interstate commerce. Here, appellees were receiv ing annually about $70,000 worth of meat from out- of-State sources. But the size and volume of pur chases of the individual establishment are not conclu sive. Also “ [appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce.” Labor Board v. Reliance Fuel Corp., 371 U.S. 224, 226. As the Court held in Wickard v. Filburn, 317 U.S. I l l , 127-128: That appellee’s own contribution to the de mand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others simi larly situated, is far from trivial. 47 To the same effect, see Polish National Alliance v. Labor Board, 322 U.S. 643; Labor Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 685, n. 14; Labor Board v. Fainblatt, 306 U.S. 601. Congress was also entitled to judge the importance of the commercial relationship between racial dis crimination in restaurants and the interstate flow of goods in the light of the data showing that the ob structions were widespread, confined to no single city, State or even region, but part of a nationwide prob lem. Discriminatory practices in one restaurant in Birmingham are not unrelated to racial discrimina tion in other restaurants in Birmingham, and also in hotels, motels, theaters and other places of public entertainment. Discrimination in Birmingham and the resulting disturbances are not unrelated to racial discrimination in Chicago, Los Angeles and Yew York. While Congress was careful to cover only establishments where discrimination would have an individual link to interstate commerce through the receipt of out-of-State goods, it was entitled to judge the importance of that link in the light of its knowl edge that the discrimination and resulting threat of disturbances at any one establishment wrns part of a complex and interrelated pattern. Cf. Wickard v. Filburn, 317 U.S. 111. I t is also immaterial whether a dispute had occur red or was imminent at appellees’ restaurant. In Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 222, the Court held— But it cannot be maintained that the exertion of federal power must await the disruption of 4 8 that commerce. Congress was entitled to pro vide reasonable preventive measures and that was the object of the National Labor Relations Act. Similarly, in dealing with the threat to commerce arising from a practice of racial discrimination Con gress “ was entitled to provide reasonable preventive measures” ; that was the object of Title I I of the Civil Rights Act. 3. The absence of an explicit recital that racial discrimination in restaurants serving food from out-of-State sources burdens interstate commerce does not invalidate Title II Appellees, if we may judge from their brief in the district court, do not challenge the basic constitutional principles upon which we rely; nor did they offer to prove that there was no evidence upon which one could reasonably conclude that the prohibition of racial discrimination in covered places of public ac commodation was adapted to eliminating a cause of obstructions to the free flow of goods in interstate commerce. Indeed, both they and the court below (R. 45-46) seem to agree that the Labor Board cases would be controlling if Congress had made a more explicit finding that, discrimination affects commerce comparable to the findings in the National Labor Re lations and Fair Labor Standards Acts, and if there were provision for ad hoc inquiry into whether the discrimination at a particular restaurant has that effect. From the absence of such provisions appellees and the court below leap to the conclusion that “ Con gress has sought to put an end to racial discrimination in all restaurants wherever situated regardless of 49 whether there is any demonstrable causal connection between the activity of the particular restaurant against which enforcement of the act is sought and interstate commerce” (R. 48). The absence of formal declared findings neither warrants that conclusion nor invalidates the statute. Such recitals are contained in some statutes30 and omitted from others.31 Their presence may aid the Court in understanding the factual predicate of par ticular legislation but they are not essential. The Court has often sustained statutes regulating activi ties affecting commerce even though there was no express legislative declaration. See, e.g., Southern Ry. Go. v. United, States, 222'U.S’. 20; Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U.S. 612; United States v. Ferger, 250 U.S. 199; Vir ginian Ry. v. System Federation No. 40, 300 U.S. 515; United States v. Sullivan, 332 U.S. 689; Federal Trade Commission v. Mandel Bros., 359 U.S. 385, 391.32 30 See, e.g., Securities Exchange Act, of 1934, 15 U.S.C. 78b; Trust, Indenture Act of 1939, 15 U.S.C. 77bbb; National Labor Relations Act, 29 U.S.C. 141; Fair Labor Standards Act, 29 U.S.C. 201. 31 See, e.g., Railway Labor Act, 45 U.S.C. 151; Safety Appli ance Acts, 45 U.S.C. 8, 49 U.S.C. 26; Bill of Lading Act, 49 U.S.C. 121; Fur Products Labelling Act, 15 U.S.C. 69; Auto mobile Information Disclosure Act, 15 U.S.C. 1231; Textile Fiber Products Identification Act, 15 U.S.C. 70. 32 The passage concerning the necessity of findings quoted by the district court from Mr. Justice Black’s concurring opinion in Polish National Alliance v. Labor Board, 322 U.S. 643, 651-653, is taken out of context. He was addressing him self to the substantive posture in which the case was put by the action of the Labor Board, and speaking of administrative 50 The fatal error in appellees’ argument is that it reverses the normal presumption of constitutionality and asks the Court to assume, because of the absence of formal recitals, (i) that Congress ignored the com mercial consequences of racial discrimination that would support the legislation and (ii) that Congress proceeded exclusively upon another ground. To at tribute to Congress an improper theory where there are ample constitutional grounds for its action is con trary to settled principles of constitutional adjudi cation. The Court has repeatedly held, “A decent re spect for a co-ordinate branch of the government de mands that the judiciary should presume, until the con trary is clearly shown, that there is no transgression of power by Congress—all the members of which act under an oath of fidelity to the Constitution * * *. I t is incumbent, therefore, upon those who affirm the un constitutionality of an act of Congress to show clearly that it is in violation of the provisions of the Constitu tion,” Legal Tender Gases, 12 Wall. 457, 531. “Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law * * *. When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to findings. The Court has frequently required explicit findings by an administrative agency before sanctioning its regulation of activities that would be within the scope of State power but for the agency’s intervention. E.g., Florida v. United States, -282 U.S. 194, 211-212; City of Yonkers v. United States, 320 XJ.S. 685. These were the principal cases cited by Justice Black. 51 the Congress.” United States v. Butler, 297 U.S. 1, 67. See, also, Sinking Fund Cases, 99 U.S. 700, 718; United States v. Harris, 106 U.S. 629, 635.33 One well-settled corollary is that neither proof nor legislative findings are required where the constitu tionality of legislation turns upon whether conditions exist which might lead the legislative body to conclude that the challenged measure was a means reasonably adapted to a permissible objective. The Court dealt with the point explicitly in United States v. Carotene Products Co., 304 U.S. 144,152: Even in the absence of such aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation af fecting ordinary commercial transactions is not 33 A similar presumption applies where the constitutionality of a State statute regulating business activities is challenged. See Metropolitan Casualty Insurance Go. v. Brownell, 294 U.S. 580, 584, and cases there cited at note 1; South Carolina High way Department v. Barnwell Brothers, 303 U.S. 177, 191—192, where it was said: “Being a legislative judgment it is presumed to be supported by facts known to the legislature unless facts judicially known or proved preclude that possibility. Hence, in reviewing the present determination we examine the record, not to see whether the findings of the court below are sup ported by evidence, but to ascertain upon the whole record whether it is possible to say that the legislative choice is with out rational basis.” See, also, Clark v. Paul Gray, Inc., 306 U.S. 583, 594; McGowan v. Maryland, 366 U.S. 420, 426. The presumption probably does not apply to “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” United States v. Carotene Products Co., 304 U.S. 144, 152, n. 4. Nor are we dealing here with a situation in which “legis lation appears on its face to be within a specific prohibition of the Constitution * * Ibid. 52 to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. Compare Townsend v. Yeomans, 301 tl.S. 441, 451-452. In the present case evidence was presented to Con gress showing that racial discrimination in places of public accommodation created a commercial problem of national magnitude. See pp. 38-44, above. Ex cept where it was dealing with discrimination sup ported by State action in violation of the Constitution (Section 201 (a) and (d)), Congress prohibited dis crimination only in those establishments which have a close and intimate tie to interstate commerce—in the case of restaurants, through serving food which comes from out of State. The natural conclusion is that Congress decided that discrimination in the es tablishments thus linked to commerce so burdened and obstructed that commerce as to require the legislation. We think that Section 201(b) amounts to a declared finding of that fact, but even if it does not, plainly appellees have failed to make the required showing “that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress” (United States v. Butler, supra). Appellees ’ argument also fails upon a second, settled point of constitutional adjudication. Where legisla tion is clearly appropriate to the exercise of a granted power, the courts may not investigate the legislature’s 53 reasoning with a view to attributing to Congress an impermissible objective and thereby invalidating the legislation. Veazie Bank v. Fenno, 8 Wall. 533, 546; McCray v. United States, 195 U.S. 27, 54-55; Hamil ton v. Kentucky Distilleries Co., 251 U. S. 146, 160- 163; Arizona v. California, 283 IT.S. 423, 454-457/1 Where an Act of Congress is seen to be reasonably adapted to an objective within the' delegated powers of Congress—here the protection of interstate com merce—and it offends no express limitation, the judi cial function is exhausted. McCulloch v. Maryland, 4 Wheat. 316, 420. Jh Title II is not invalidated by the absence of provision for an administrative or judicial finding whether discrimination in an individual restaurant affects interstate commerce, be fore bringing it within the coverage of th-e Act In the district court appellees also argued that Title I I could not be sustained as a regulation of local activities affecting interstate commerce because the statute does not provide for an individual ad hoc decision, by a court or administrative agency, as to whether racial discrimination in the particular estab lishment will affect interstate commerce. The argu ment has no support in the authorities and is incon sistent with the implicit holding of a long line of decisions. I t is also unsound in principle. 34 34 This is not to say that a statute which is obviously designed to reach a forbidden objective is saved because another merely colorable purpose is cited in justification. Nor is the usual “insulation” from judicial review “carried over when state power is used as a n . instrument for circumventing a federally protected right,” Gomillion v. Light foot, 364 U.S. 839, 347. Section 201 prohibits racial discrimination in any restaurant where a substantial portion of the food served comes from another State. In enacting the prohibition Congress determined for itself that racial discrimination in such an establishment, when viewed as one of many similar enterprises, does, in fact, create such a danger of obstructing interstate com merce as to warrant protective legislation. With that fact—that part of the link between discrimination and commerce established—there remains only the question whether a particular restaurant receives goods from out of State. The latter issue is subject to judicial determination in every case. There is no constitutional requirement that the rela tion between interstate commerce and a particular practice like racial discrimination be left to ad hoc litigation in each particular case. In United States v. Darby, 312 U.S. 100, 120-121, the Court noted the variations in legislative practice and approved a legis lative determination of the relation: In such legislation [i.e. legislation regulating activities intrastate] Congress has sometimes left it to the courts to determine whether the intrastate activities have the prohibited effect on the commerce, as in the Sherman Act. I t has sometimes left it to an administrative board or agency to determine whether the activities sought to be regulated or prohibited have such effect, as in the case of the Interstate Com merce Act, and the National Labor Relations Act, or whether they come within the statutory definition of the prohibited Act, as in the Fed eral Trade Commission Act. And sometimes 54 55 Congress itself lias said that a particular ac tivity affects the commerce, as it did in the present Act, the Safety Appliance Act and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned the only function of courts is to determine whether the particular activity regulated or prohibited is within the reach of the federal power. See United States v. Ferger, supra; Virginian By. Go. v. Federation, 300 U.S. 515, 553. There was no provision for trial of the question whether the lack of a safety appliance upon a par ticular piece of rolling stock used in intrastate com merce endangered interstate commerce, Southern By. Go. v. United States, 222 U.S. 20; of whether the hours of labor of back shop employees would interfere with the operation of interstate trains, Baltimore & Ohio B. Go. v. Interstate Commerce Commission, 221 U.S. 612; of whether the issuance of a particular forged bill of lading interfered with commerce, United States v. Ferger, 250 U.S. 199; or of whether the growing of wheat in excess of the allotment to Filbum’s farm would disrupt interstate markets, Wichard v. Fil- burn, 317 U.S. 111. Contrary to the opinion below (R. 46), the course followed in Section 201 of the Civil Rights Act of 1964 closely parallels the scheme of Sections 6, 7, and 15(a) (2) of the Fair Labor Standards Act. The con stitutionality of the latter rests upon the ground that the payment of! substandard wages to employees en gaged in the production of goods for commerce, while 56 not itself commerce, nevertheless so obstructs and burdens commerce as to be subject to federal regula tion. United States v. Darby, 312 U.S. 100, 117-121. That issue was resolved by Congress. The sole ques tion left for judicial determination was whether the particular goods were produced for commerce. In the present instance Congress itself has said that dis crimination in a restaurant which, directly or indi rectly, receives goods in commerce, threatens to ob struct or burden that commerce. The only question left for judicial determination is whether the particu lar restaurant receives goods in commerce. The parallel is complete, and the holding in United States v. Darby is therefore precisely applicable to the pres ent case,35 Indeed, appellees’ effort to distinguish the National Labor Relations Act rests upon a misunderstanding of the operation of that statute. Although the Act em powers the Board to prevent unfair labor practices and resolve questions of representation affecting com merce and provision is made for administrative hear ing, the Board’s inquiry upon this point never goes beyond the relationship between the employer’s busi ness and interstate commerce, such as the shipment or receipt of interstate goods. The Board has never made ease-by-case inquiries into whether diserimina- tion against union members or other unfair labor prae- 35 The very argument made by appellees here was presented in United States V. Darby, and rejected by the Court in the por tion of the opinion quoted above. See Brief for Appellee, No. 82, October Term 1940, pp. 76-77. 57 tices in the particular shop might give rise to a labor dispute which might curtail shipments or orders and so affect interstate commerce. Were an employer to tender proof upon the issue, it would be excluded. Just two terms ago this Court reversed a holding of the Second Circuit setting aside a decision of the Board for lack of “findings on the manner in which a labor dispute at Reliance affects or tends to affect commerce.” This Court held that findings as to the quantity of out-off State oil purchased by Reliance from local wholesalers were alone sufficient. Labor Board v. Reliance Fuel Co., 371 II.S. 224: see, also, Labor Board V. Bradford Dyeing Assn., 310 U.S. 318, 326; Labor Board v. Phoenix Mutual Life Insurance Co., 167 F. 2d 983, 985 (C.A. 7), certiorari denied, 335 IBS, 845. The adequacy of such findings is also ap parent both from the Board’s consistent practice and from the lead cases and press releases announcing yardsticks for the exercise of jurisdiction, See Sie- mons Mailing Service, 122 N.L.R.B. 81; Sioux Valley Empire Electric Assn., 122 N.L.R.B. 92. Evidently the Board feels that Congress itself found that unfair labor practices in businesses closely related to commerce have a tendency to obstruct it, leaving open only the existence of a link between the partic ular business and interstate commerce. I f so, the situation under the National Labor Relations Act is indistinguishable from Title II. I f the general rule is Board-made, the power of Congress is certainly not less. ■ r — y. ■' P; , ; 58 CONCLUSION Although we contend that Congress has, and has ex ercised, the power to prohibit racial discrimination in places of public accommodation (as defined in Title I I ) , because the discrimination is a prolific source of burdens and obstructions to interstate commerce, we do not suggest that Congress was uninfluenced by the conviction that racial discrimination in public places is a grave moral wrong, lying heavy on the con science of the entire Nation, which belies the ideals of America. Paced with the need for meeting the com mercial problem, Congress was free to choose the remedy adapted to that end which it believed would be most effective, most conducive to the public welfare, and most consistent with the promise of America to all sorts and conditions of men. Similarly, it is irrelevant whether racial discrimina tion in restaurants be called a commercial practice or a social custom. I f a social custom is carried over into business enterprises, which are subject to legislative regulation, and there becomes a source of burdens or obstructions to interstate commerce, Congress has the same power to prohibit the practice, as a means of protecting commerce, as it would have if the practice were in commerce itself. And the power to prohibit racial discrimination in commerce is too plain for argument. Mitchell v. United States, 313 U.S. 80, 94; Henderson v. United States, 339 U.S. 816; Boynton v, Virginia, 364 U.S. 454. The power of Congress under the commerce clause and “necessary and proper” clause is broad and 59 sweeping. I t may be argued that such power is subject to abuse. Tbe answer to such arguments, when Congress keeps within:. its sphere, and violates no express constitutional limitation, was voiced by Chief Justice Marshall one hundred and forty years ago in Gibbons v. Ogden, 9 Wheat. 1, 197: The wisdom and the discretion of the congress, their identity with the people, and the influ ence which their constituents possess at elec tions, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. Here, then, as on most other aspects of the case, the governing principles go back almost to the found ing of the Republic. The Civil Rights Act of 1964. was debated longer, more widely and more conscientiously than any legis lation in recent decades. Title II is plainly appro priate to resolving what was, in a major aspect, a national commercial problem within the reach of Congress under the power to regulate interstate com merce. Title II violates no express limitations such as are contained in the Bill of Rights. Ho other issue remains.88 The judgment below should therefore be reversed, both because the court below had no equity jurisdie- 36 The questions raised below by appellees under the First, F ifth and Thirteenth Amendments appear to require no answer beyond our brief in Heart of Atlanta Motel, Inc. v. United States, Ho, .515, This Term. 60 tion and because Title II, as applied to appellees* restaurant, is constitutional. Respectfully submitted. A rchibald Cox, Solicitor General. B urke M arshall, Assistant Attorney General. R alph S. Spritzer, P h il ip B . H eymann , Assistants to the Solicitor General. October 1964. H arold Greene, Alan G. M arer, Gerald P . Ch o ppin , Attorneys. 0 , 5 . GOVERNMENT PRINTING OFFICE>!«««