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 15, 2025.
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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.
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