Katzenbach v. McClung Brief for Appellants

    N o .  5 4 3

Jtt ilxt JSfljmne d[m\ <rf th Mnlid $tnU%
October T eem , 1964

N icholas deB. K atzenbach, as A cting A ttorney 
General of th e  U nited S tates of A m erica ; 
M acon L . W eaver, as U nited S tates A ttorney 
for th e  N orthern D istrict of Alabama, 
appellants

v.
Ollie M cClung, Sr ., and Ollie  M cClijng, J r.

APPEAL FROM T B E  UNITED STA T E S D ISTRIC T COURT FOR THE  
NO RTHERN D ISTRIC T OF ALABAM A

BRIEF FOR THE APPELLANTS

ARCHIBALD COX,
Solicitor General.

BURKE MARSHALL,
Assistant Attorney General,

R A L PH  S. SPRITZER,
P H IL IP  B. H EY M AN N,

Assistants to the Solicitor General, 
HAROLD H. GREENE,
A LA N  G. M ARER,
GERALD P. CHOPPIN,

Attorneys,
Department of Justice, 

"Washington, D.C., 20530.



I N D E X

Pag*
Opinion below--- -------------------------------------------------------  1
Jurisdiction----.---.-.— — _——-------------------------------------  1
Questions presented__ --------------------------------   2
Statutes involved-------------------- ——____-------------------- 2
Statement--______________ ____ — — '-------------------  2
Summary of argument-:--- --------------------------   7
Argument_____A----,— :—  ---------------------------------  11

I. The complaint should be dismissed for want of
equity jurisdiction_________________   12

II. Section 201 of the Civil Eights Act of 1961, as 
applied to appellee’s restaurant, is a valid
exercise of the commerce clause______________  24

A. The power to regulate interstate com­
merce extends to local activities whose 
regulation is appropriate to protect in­
terstate commerce from burdens or 
obstructions__________________________  27

1. The power of Congress is not con­
fined to the regulation of the 
course of interstate commerce but 
extends to matters substantially 
affecting it__________________  27

2. The power to regulate local matters
substantially affecting interstate 
commerce extends to retail estab­
lishments including restaurants_ 30

3. Cases holding that interstate com­
merce ends when goods “come to 
rest” in a State are irrelevant to 
the power of Congress to regu­
late local activities which sub­
stantially burden interstate com­
merce_______________________  32

(i)748-011—64------1



II

Argument—Continued
II. Section 201 of the Civil Rights Act, etc.—Con.

B. Racial discrimination in restaurants sell­
ing food from out-of-state sources bur- pag8 
dens and obstructs interstate commerce. 35

1. Racial discrimination in restau­
rants serving food from out-of- 
state is a prolific source of 
disputes burdening and obstruct­
ing interstate commerce_______  38

2. Racial discrimination in restau­
rants serving food from out-of- 
state artificially restricts the 
market for goods moving in 
interstate commerce___________ 44

3. The absence of an explicit recital
that racial discrimination in 
restaurants serving food from 
out-of-state sources burdens in­
terstate commerce does not in­
validate Title I I ______________ 48

4. Title I I  is not invalidated by the
absence of provision for an ad­
ministrative or judicial finding 
whether discrimination in an 
individual restaurant affects in­
terstate commerce, before bring­
ing it within the coverage of
the Act,.__. . . ------------------—  53

Conclusion.._____ _______ _______ _____ _______________ 58

CITATIONS
Cases:

Adair v. United States, 208 U.S. 161.---------------- - 29
Adler v. Board of Eduoation., 342 U.S. 485---------- 23
Arizona v. California, 283 U-S. 423------ — --------  53
Ashwander v. Tennessee Valley Authority, 297

U.S. 288____ ________________________ _______  18
Baltimore <& Ohio R. Co. v.. Interstate Commerce

Comm., 221 U.S. 612____ . . . . . . -------- -— .  29,49,55
Berea College v. Kentucky, 211 U.S. 45------------------  18



Cases—Continued
Board of Trade of Kansas City v. Milligan, 90 F. pag«

2d 855_________________ -___________________ ' IV
Bolton & H ay, 100 N.L.R.B. 361________________  32
Boynton v. Virginia, 361 TJ.S. 454---------------------— 58
Brandeis <& Sons, J . L. v. Labor Board, 142 F. 2d

977, certiorari denied, 323 TJ.S. 751------------------  31
Brennan's French Restaurant, 129 N.L.R.B. 52-------- 32
Brooks v. United States, 267 TJ.S. 432-------------------  37
Browder v. Gayle, 142 F. Supp. 707 affirmed 352

TJ.S. 902_____________ _______ _______________ 17
Brown v. Maryland, 12 Wheat. 419_______________  33
Camhnetti v. United States, 242 TJ.S. 470---------------  37
Carter v. Carter Coal Co., 298 TJ.S. 238----------------  23,29
Chicago Board of Trade v. Olsen, 262 TJ.S. 1--------29,36
Chicago ds Grand Trunk Ry. v. Wellman, 143

TJ.S. 339_______________ ____________________  18
Childs Co., 88 NLRB 720________________________  32
Childs Co., 93 N.L.R.B. 281_____________________  32
City o f Yonkers v. U.S., 320 TJ.S. 685___________ 50
Civil Rights Cases, The, 109 TJ.S. 3-------------------  25
Clark v. Paul Cray, Inc., 306 TJ.S. 583------------------  51
Consolidated Edison Co. v. Labor Board, 305

TJ.S. 197_________________________________ —  47
Coronado Coal Co. v. United Mine Workers, 268

TJ.S. 295_________________    29
Crown Kosher Supermarket v. Gallagher, 176 F.

Supp. 466, reversed on other grounds, 366
TJ.S. 617________________ _______ -___________  17

Culinary Workers di Bartenders Union v. Labor
Board, 310 F. 2d 853________________________  32

Currin v. Wallace, 306 TJ.S. 1----------------------------23,24
In  re Debs, 158 U.S. 465________________________  30
Douglas v. City o f Jeammette, 319 U.S. 157----------- 8,16
Euclid v. Ambler Realty Co., 272 U.S. 365---------l-_- 23
Everard's Breweries v. Day, 265 U.S. 545-------------------- 36
Federal Trade Commission v. Mandel Bros., 359

U.S. 385_______________________________ -  37,38,49
First Employers’ Liability Cases, 207 U.S. 463__—_ 29
Florida v. United States, 282 U.S. 194----------------  50
Gibbons v. Ogden, 9 Wheat. 1------------------- — 9,28,30,59

til



IV

Cases—Continued pag®
Gober v. City of Birmingham, 373 U.S. 374_______  7
Hamilton v. Kentucky Distilleries Go., 251 U.S. 146_ 53
Hammer v. Dagenhart, 247 U.S. 251_____________ 29
Hemderson v. United States, 339 U.S. 816_________37, 58
Hemdriek v. Maryland, 235 U.S. 610______________ 18
Hooven dr. Allison Go. v. Evatt, 324 U.S. 652_______  33
Houston <& Terns By. v. United States, 234 U.S. 342_ 29
Lntrl Brotherhood v. Labor Board, 341 U.S. 694___  31
Joe Hunt's Restaurant, 138 N.L.K.B. 470_________  32
Kennedy v. Los Angeles Joint Exec. Board, 192 F.

Supp. 339___________________________________  32
Labor Board v. Bradford Dyeing Assn., 310

U.S. 318____________________________________  57
Labor Board v. Childs Go., 195 F. 2d 617---------------  31
Labor Board v. Denver Bldg, da Const. Trades

Council, 341 U.S. 675------ .-------------------------------- 31,47
Labor Board v. Fainblatt, 306 U.S. 601__________  47
Labor Board v. Gene Compton's Corp., 262 F,

2d 653______________________________________  32
Labor Board v. Howard Johnson Co., 317 F. 2d 1,

certiorari denied, 375 U.S. 920---------------------------  32
Labor Board v. Jones da Laughlin Steel Corp., 301

U.S. 1________________ - _________________  28,29,36
Labor Board v. Laundry Drivers Local, 262 F. 2d

617_____________ _______ - ____- ______________31-32
Labor Board v. Local Joint Board, 301 F. 2d 149—  31
Labor Board v. Morrison Cafeteria Co. of Little

Rock, 311 F. 2d 534___________________________ 31
Labor Board v. Phoenix Mutual Life Insurance Co.,

167 F. 2d 983, certiorari denied, 335 U.S. 845-----  57
Labor Board v. Reliance Fuel Corp., 371 U.S. 224— 11,

28,30,46,57
Legal Tender Cases, 12 Wall 457-------------------------  50
Lion Manufacturing Corp. v. Kennedy, 330 F. 2d

833____________________________ ___ ,-------------  17
Local 7b v. Labor Board, 341 U.S. 707------------------  31
Lottery Ca.se, The, 188 U.S. 321---------------------------- 37
May Department Stores Co. v. Labor Board, 326 U.S. .

376---------------- ----------- ----------------------------------  31
McCray v. United States, 195 U.S. 27-------------------  53



V

Cases—Continued Page
McCulloch v. Maryland, 4 Wheat. 316-------------------  53
McDermott v. Wisconsin, 228 U.S. 115— — -----------  38
McGowan v. Maryland, 366 U.S. 420—------------------ 51
McLeod v. Chefs, Cooks, Pastry Cooks <& Assistants

Local 89, 280 F. 2d 760___ ______ ____ — — —  32
McLeod v. Chefs, Cooks, Pastry Cooks & Assistants

Union, 286 F. 2d 727____    32
Meat Cutters v. Pairlat.cn Meats, 353 U.S. 20----------- 31
Metropolitan Casualty Insurance Co. v. Brownell, 294

U.S. 580--------------------     51
Mil-Bur, Inc., 94 N.L.R.B. 1161—-------------- ---------  32
Mintz v. Baldwin, 289 U.S. 346------------------   33
Mitchell v. United Stales, 313 U.S. 80.-----------------  37, 58
Norman v. Baltimore c& Ohio II. Co., 294 U.S. 240— 35
Pacific States Box and Basket Go. v. White, 296 U.S.

176_________________________________________  34
Packer Corp. v. Utah, 285 U.S. 105----------------------  34
Pennsylvania v. West Virginia, 262 U.S. 553---------  23
Pierce v. Society of Sisters, 268 U.S. 510---------------  23
Polish National Alliance v. Labor Board, 322 U.S.

643--------- -------------------------   47,49
Public Utilities Commission of California v. United

States, 355 U.S. 534--------------------------------------   23
Railroad Commission of Wisconsin v. Chicago B. <&

Q. R. Co., 257 U.S. 563_______________ _____  29
Railroad Retirement Board v. Alton R. Co., 295 U.S.

330_________________________________________  29
Retail Fruits <& Vegetable Union v. Labor Board,

249 F. 2d 591______    31
Richmond Hosiery Mills v. Camp, 74 F. 2d 200------  16.
Ryan v. Amazon Petroleum Corp., 71 F. 2d 1-------- ' 16
Siemons Mailing Service, 122 N.L.R.B. 81---------------  57
Siler v. Louisville and Nashville R. Co., 213 U.S.

175-------------------------- -------------------------------------  18
Sinking Fund Cases, 99 U.S. 700--------------------------  51
Sioux Valley Empire Electric Assn., 122 N.L.R.B.

92__________________________________________  57
Smitley v. Labor Board, 327 F. 2d 351___________  32
Southern Railtoay Co. v. United States, 222 U.S.

20_______________________________________  29,49, 55



VI

Cases—Continued
South Carolina State Highway D eft. v. Barnwell page

Bros., 303 T7.S. 177____________________________33, 51
Sparks v. Mellwood Dairy, 74 F. 2d 695----------------  17
Spielman Motor Co. v. Dodge, 295 U.S. 89------------  15
Stafford v. Wallace, 258 U.S. 495-------------------------  36
Standard Oil Co. v. United States, 221 U.S. 1-------- 29
Stanton Enterprises, Inc., 147 N.L.R.B. No. 81, 4

CCH Lab. L. Rep. 21,075, para. 13,211---------------  32
Stork Restaurant, Inc. v. McLeod, 312 F. 2d 105----- 32
Stouffer Corf., The, 101 N.L.R.B. 1331----------------  32
Superior Court o f Washington v. Yellow Cab Co.,

361 U.S. 373__________1_____________________  34
Sw ift da Co. v. United States, 196 U.S. 375------------  35
Terrace v. Thompson, 263 U.S. 197----------------------  22
Terns amd New Orleams Railroad v. Brotherhood 

of Railway •amd Steamship Clerks, 281 U.S. 548— 29
Townsend v. Yeomans, 301 U.S. 441-------------------  52
Tyler v. Judges of the Court o f Registration, 179

U.S. 45____________________________________  18
United Public Workers v. Mitchell, 330 U.S. 75------  17
United States v. Butler, 297 U.S. 1----------------------  51
United States v. Carotene Products Co., 304

U.S. 144____________________________________ 51
United States v. Darby, 312 U.S. 100—  11,28,29,38, 54, 56
United States v. Ferger, 250 U.S. 199-------------  29,49, 55
United States v. Harris, 106 U.S. 629-------------------  51
United States v. E. C. Knight, 156 U.S. 1------------  29
United States v. Lowden, 308 U.S. 225---------------  —  29
United States v. Sullivan, 332 U.S. 689----------------  37,49
United States v. Wiesenfeld Warehouse Co., 376

U.S. 86_____________________________________ 33
United States v. Wnghtvwod Dairy Co., 315

U.S. 110—______________________________ - —  27
Veazie Bank v. Fenno, 8 Wall. 533----------------------  53
Virginian Ry. v. System Federation No. Ifl, 300

U.S. 515_____ _____ - ________ __________ — —  29,49
United States v. Yellow Gab Co., 332 U.S. 218-------- 34
Watson v. Buck, 313 U.S. 387__________________ —  17
Weigle v. Curtice Bros. Co., 248 U.S. 285-------------- 34
Wickard v. Filbum, 317 U.S. I l l __—  17,27,29,46,47,55
Woodruff v. Parham, 8 Wall. 123-------------------  —  33



VII

Cases—Continued Page
Tarnell v. Hillsborough Packing Co., 70 F. 2d 435—  16
Youngstown Sheet <& Tube Co. v. Bowers, 358

U.S. 534__    33
U.S. Constitution and Statutes:

Art. I, Sec. 8, Cl. 3_____________________________ 25,27
Art. I, Sec. 8, Cl. 18____________________________  25
First Amendment----- ----------- -------------—  -------11,24,59
Fifth  Amendment__________________________ 7,11,24,59
Ninth Amendment------ ---------------------------:---------- 11,24
Tenth Amendment_________________ _—---------- - 4,11, 24
Thirteenth Amendment— -----i— :------------- -— 11,24, 59
Fourteenth Amendment------------------- —-----6,10
Fourteenth Amendment, Section 5—-----— — -----  26
Civil Rights Act of 1875,18 Stat. 335-*— ,------ --------  26
Civil Rights Act of 1957, 71 Stat. 637— -------    20
Civil Rights Act of 1960, 74 Stat. 86-------  20
Civil Rights Act of 1964—  2, 4, 5, 8,12,13, 19, 20, 21, 25, 59' 

Title 11— —  2, 4, 5, 6, 7, 12, 13, 15, 20, 53, 58, 59
Sec. 2Q1„____ -_______ *— -------—  8,13,24, 54,55
Sec. 201(a)_______________ - —  -----------12,52
Sec. 201(b) (1)-------  19
Sec. 201(b) (2)—— _____________________  19
Sec. 201(b)(3)__________________________ 19
Sec. 201(c)(2)__________________________  4,12
Sec. 201(d)______________________________10,25
Sec. 207(b)_______________________    13

Title X — _______— _____________- ______  20
Automobile Information Disclosure Act, 15 U.S.C.

1231__________________________- — — --------  49
Bill of Lading Act, 49 U.S.C. 121----------------------------  49
Fair Labor Standards Act, 29 U.S.C. 201------- — ,—  48,49
Fair Labor Standards Act, 29 U.S.C. 201, Sec. 6-------- 55
Fair Labor Standards Act, 29 U.S.C. 201, Sec. 7--------  55
Fair Labor Standards Act, 29 U.S.C. 201, Sec. 15

(a) ( 2 ) ------------------------- ---------- --------- ---------  55
Federal Food, Drug & Cosmetic Act, 21 U.S.C. 201-----  37
Fur Products Labelling Act, 15 U.S.C. 69---------------  49
National Labor Relations Act, 29 U.S.C. 141------------ 48,49
Railway Labor Act, 45 U.S.C. 151-------------------------  49
Safety Appliance Acts, 45 U.S.C. 8------------------ .—  49
Safety Appliance Acts, 49 U.S.C. 26----------------------  49



VIII

U.S. Constitution and Statutes—Continued page
Securities Exchange Act of 1934, 15 U.S.C. 78b-------- 49
Textile Fiber Products Identification Act, 15

U.S.C. 70_________________________________ —  49
Trust Indenture Act of 1939, 15 U.S.C. 77bbb---------  49
18 U.S.C. 241, 242__________________________ 13,20
28 U.S.C. 1252_____________________________  2
28 U.S.C. 1253_____________________________  2

Miscellaneous:
Analysis of Prof. Paul A. Freund, S. Bep. 872, 88th

Cong., 2d Sess., pp. 82-83__________________  38
Census of Business, U.S. Bureau of the Census, 1958— 19
110 Cong. Bee. (daily ed.) :

P. 7174____________________________________  44
P. 7980___________________________________ - 39

1 Cooley Constitutional Limitations (8th ed.), p. 832_ 18
Hearings before the Committee on Commerce, United 

States Senate, 88th Cong., 1st Sess., on S. 1732, Part
2, Ser. 27_____________________  40, 41, 42, 43, 44, 45, 46

Beport of the House Judiciary Committee, 88th Cong.,
1st Sess., No. 914, Part 2, on H.B. 7152 (December
2, 1963 42



Jit ife JSitjimite <2{mtri of k t  ®tM jStatea
October T erm , 1964

No. 543
N icholas deB. K atzenbach, as A cting A ttorney 

General of the  U nited S tates of A m erica ; 
M acon L. W eaver, as U nited S tates A ttorney 
for the  N orthern D istrict of A labama, 
appellants

v.
Ollie M cClung, S r., and Ollie  M cClung, J r.

APPEAL FROM THE UNITED STATES D ISTR IC T COURT FOR THE  
NORTHERN D ISTRIC T OF ALABAM A

BRIEF FOR THE APPELLANTS

OPINION BELOW

The opinion of the district court (R. 34) is not yet 
reported.

JURISDICTION

The order of the district court was entered on Sep­
tember 17, 1964 and a notice of appeal filed on the 
same date.* 1 The jurisdictional statement was filed on

stay of the order was denied by the district court, on 
September 18, 1964, but granted by order of Mr. Justice Black, 
dated September 23, 1964.

(l)



2

September 28, 1964. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1252 and 1253.

QUESTIONS PRESENTED

1. Whether the complaint should be dismissed for 
want of equity jurisdiction.

2. Whether Title I I  of the Civil Rights Act of 
1964 is constitutional insofar as it prohibits racial 
discrimination by a restaurant “if * * * a substan­
tial portion of the food which it serves * * * has 
moved in commerce.”

STATUTES INVOLVED

The relevant statutory provisions are printed in 
Appendix A to the government’s brief in the com­
panion Heart of Atlanta case, No. 515.

STATEMENT

On July 2, 1964, the President of the United States 
signed into law the Civil Rights Act of 1964. On July 
3, 1964, certain unnamed and otherwise unidentified 
Negroes allegedly entered “Ollie’s Barbecue”, oper­
ated by appellees in Birmingham, Alabama. They 
requested, but were refused, service at the meal coun­
ter; instead, they were offered “take-out” service at 
the “colored take-out” end of the counter (R. 87-88). 
Although the federal government had had no com­
munication with appellees concerning compliance with 
the Civil Rights Act of 1964, appellees, on July 31, 
1964, filed a complaint in the United States District 
Court for the Northern District of Alabama to pro­
hibit appellants from enforcing or attempting to en­
force the Act against them.



3

The complaint contains the following allegations: 
Appellees’ restaurant serves approximately 500,000 
meals annually and has gross sales of $350,000 (R. 2). 
The establishment serves food and non-alcoholic 
beverages, but specializes in barbecued meats and 
pies which account for 90% of the business (R. 2). 
There is parking space on the premises for about 90 
automobiles and the seating capacity of the restaurant 
is about 200 persons. Appellees have 36 employees, 
26 Negro and 10 white (R. 2).

“Ollie’s Barbecue” is located in a part of Birming­
ham “largely occupied by Negro residences, and by 
industrial concerns employing a large number of 
Negro employees” (R. 4). There is a truck route 
one block away; the nearest “Federal or Interstate” 
highway is 11 blocks away; the railroad station 17 
blocks; the bus station 20 blocks; and the airport more 
than five miles (R. 2).

Appellees “do no advertising and make no effort 
to attract transient customers” (R. 2). The restau­
rant “derives no trade” from the truck route and, to 
their knowledge, appellees serve no interstate travelers 
(R. 2). Negroes have never been served food or 
beverages for consumption on the premises but have 
been served for many years on a “take-out” basis 
(R. 3, 4). I f  Negroes were allowed service for con­
sumption on the premises, they would occupy appel­
lees’ restaurant in large numbers, to the exclusion of 
appellees’ regular customers (R. 5). Appellees’ busi­
ness and property would thereby suffer great injury 
(R. 5).



4

The restaurant is described by appellees as “essenti­
ally local in character,” purchasing all of its food 
“within the State of Alabama” (R. 2, 5). Although 
“some of the food served” by appellees “probably 
originates in some form outside the State of Ala­
bama”, the operation of the restaurant, it was averred, 
“in no way affects interstate commerce” (R;. 6).2

The complaint further averred that the Civil Rights 
Act of 1964 exceeds the power granted to Congress 
under the commerce clause; that enforcement of the 
Act would deprive them of property without due 
process of law; that to require appellees to serve per­
sons they had not chosen to serve would constitute 
“involuntary servitude;” and that “any effort to en­
force said Act against these [appellees] would be 
invalid, in contravention of natural law and in viola­
tion of the Tenth Amendment of said Constitu­
tion” (R. 6-7).

Appellees state additionally that the Attorney Gen­
eral and his subordinates are enforcing the Act 
against others in reliance upon the provision “that a 
restaurant’s operations ‘affect commerce’ if a sub­
stantial portion of the food which it serves has merely 
moved in commerce” (R. 5). They assert that “ [t]here 
is a real and genuine threat” that appellants will seek 
to apply it to them and that they have “no adequate 
remedy in law” (R. 7).

2 After appellants had moved to dismiss on the groimd, 
inter alia, that there was no case or controversy, appellees 
produced testimony and affidavits indicating that the meat 
products which they purchased for use originate outside the 
State of Alabama, thus bringing themselves within the language 
of section 201(c) (2) of the Act.



5

On August 4, 1964, a three-judge court was desig­
nated. On the following day, a hearing was sched­
uled for September 1, 1964 on appellees’ prayer for a 
temporary injunction (R. 11,12). On August 19,1964, 
appellants filed a motion to dismiss, asserting that the 
court lacked equitable jurisdiction because appellees 
had an adequate remedy of law by way of a defense 
to a proceeding under Title I I  of the Civil Rights 
Act of 1964 (R. 16-17).

On August 21, 1964, appellees filed an amendment 
to their complaint, striking references to I Oil X DOE 
AND RUTH ROE, unidentified private defendants. 
The amendment added the claim that the Civil Rights 
Act of 1964 violated appellees’ rights under the First 
Amendment (R. 18-19).

On September 1, 1964, a hearing was held on the 
appellants ’ motion to dismiss and on appellees ’ prayer 
for a preliminary injunction. The only witnesses 
were the appellees. Their testimony largely repeats 
the allegations of their complaint. However, in tes­
tifying that the nearest interstate highway was 11 
blocks from his restaurant, Ollie McClung, Sr., ac­
knowledged that there was a State highway which 
passed directly by his restaurant and intersected the 
interstate highway (R. 71). He also stated that he 
had declined service to Negroes because of their race 
(R. 77); that most of the restaurants in Birmingham 
had served Negroes since the Civil Rights Bill was 
signed on July 2, 1964; that one of them had lost 25 
percent of its business ; and that he had not heard 
from any representative of the federal government 
concerning compliance with the Civil Rights Act



6

(R. 78, 86). Ollie MeClung, Jr., testified that on 
July 3, 1964, a group of Negroes requested counter 
service at the restaurant and were refused because 
“ it wasn’t our policy to serve them there and they 
got up and left” (R. 88). An affidavit was intro­
duced to the effect that all of the meat sold to appel­
lees by their principal supplier, valued at $69,683 
for the past twelve months and constituting 46 per­
cent of all its purchases, was procured from facilities 
located outside the State of Alabama (R. 31-32).

On September 17, 1964, the three-judge court ruled 
that Title I I  of the Act is unconstitutional as applied 
to appellees and enjoined appellants from enforcing 
it against them pending further order of the court. 
The court found that a substantial portion of the food 
served by appellees had moved in commerce and that 
they were therefore within the terms of the statute. 
I t  stated that since Title I I  imposed a mandatory 
duty of service upon appellees and since the Attorney 
General was engaged in enforcing it according to its 
terms, the prospect of its application to appellees was 
“reasonably imminent.” Turning to the question 
whether the Act was a proper exercise of the com­
merce power, the court reasoned that the out-of- 
State supplies handled by appellees had come to rest 
before they were sold by the restaurant and that 
there was no basis for concluding that there was any 
“demonstrable causal connection” between the activi­
ties of the restaurant and interstate commerce.3 In

3 The court had previously ruled that the legislative power 
conferred by the Fourteenth Amendment was not in point 
since there was no showing that the State of Alabama was in-



these circumstances, the court stated, application of 
the Act to appellees would violate the Fifth 
Amendment.

SUM M ARY OF ARGUMENT

I
The complaint should he dismissed for want of 

equity jurisdiction. Title I I  of the Civil Rights Act 
of 1964 provides for enforcement only by a civil 
action for an injunction, at which point all factual 
and legal defenses can be raised. The Act authorizes 
no criminal prosecution and provides for no civil 
penalties. There is no provision for the award of 
damages to any person. In this case there has been 
no threat to seek an injunction against appellees; be­
fore they filed suit the Department of Justice did 
not even know of their existence. Appellees claim 
that they would be injured by compliance but they 
deny any intent to comply and they neither alleged 
nor proved that the Act operated ex proprio vigore to 
discourage patronage and thus injure their business. 
In short, this is a suit seeking to enjoin a possible 
suit for an injimction not even threatened.

There is no precedent for adjudicating constitu­
tional issues in such an action. Even where the stat­
ute provides criminal penalties, the imminence of 
prosecution “is not a ground for equity relief since the 
lawfulness or constitutionality of the statute or ordi-
volved in appellees’ decision not to serve Negroes. The B ir­
mingham restaurant segregation ordinance involved in Gober 
v. Gity o f Birmingham, 373 TJ.S. 374, was repealed on July  26, 
1963 (Ordinance No. 63-15).

7



8

nance on which the prosecution is based may be de­
termined as readily in the criminal case as in a suit 
for an injunction.” Douglas v. City of Jeannette, 
319 U.S. 157, 163.

There are three reasons for that rule, which apply 
with still greater force where there is no shadow of 
present injury and the statute provides no penalties. 
First, the judicial branch will not adjudicate ques­
tions of constitutionality in the absence of a clear 
need. Second, permitting such suits would interfere 
with the normal processes of law enforcement by 
compelling the Department of Justice to expend its 
substance in defending unnecessary cases instead of 
applying its resources in the manner best calculated 
to promote the public interest. Third, a rule allow­
ing suits to enjoin enforcement of the Civil Rights 
Act could not be confined to that statute alone but 
would extend at least to all other regulatory laws, 
State and federal, when challenged on constitutional 
grounds. The potentiality for damaging interference 
with the normal administration of government is 
obvious.

I I
Section 201 of the Civil Rights Act of 1964, both 

in general and as applied to appellees’ restaurant, is 
a valid exercise of the constitutional power to regu­
late interstate commerce.

The power to regulate interstate commerce extends 
to local activities which are not part of the stream 
of commerce but whose regulation is appropriate to 
foster and promote commerce, or to protect it from



9

burdens or obstructions. This principle is estab­
lished by a wealth of decisions in this Court extend­
ing back to Gibbons v. Ogden, 9 'Wheat. 1. Both this 
Court and inferior courts have repeatedly applied the 
principle to federal regulation of the activities of 
retail establishments, including restaurants, where 
those activities would burden or obstruct interstate 
commerce. The critical inquiry in the present case, 
therefore, is whether racial discrimination in a local 
restaurant, as a matter of fact, burdens or obstructs 
the movement of goods in interstate commerce.

That practical inquiry is primarily for Congress, 
and its action is binding unless it appears to have no 
reasonable relation to the authorized end. Here, the 
evidence before Congress gave it ample ground for 
concluding that racial discrimination in places of pub­
lic accommodation that receive goods from out-of- 
State sources, including restaurants, is a prolific 
source of disputes and demonstrations sharply cur­
tailing their business activities and reducing their 
purchases of out-of-State goods. In addition, the 
practice of racial discrimination in places of public 
accommodation was shown drastically to curtail the 
retail market and thus to restrict the demand for 
out-of-State goods.

I t  is irrelevant that the volume of goods purchased 
by appellees’ restaurant, viewed in isolation, has 
scant effect upon the total volume of goods moving in 
interstate commerce. Congress was entitled to take 
into account the fact that each individual situation 
was representative of many others throughout the

746—011— 64----------2



10

country, the total incidence of which would be far- 
reaching in its impact upon commerce. I t  was also 
entitled to judge the importance of the commercial 
relationship between racial discrimination in restau­
rants and the interstate flow of goods in the light 
of the evidence that the discrimination and resulting 
threat of disturbances at any one establishment are 
part of a complex and interrelated national problem.

The absence of an explicit recital that Congress 
found that racial discrimination in places of public 
accommodation burdens interstate commerce does not 
warrant the conclusion, drawn in the opinion be­
low, “that Congress has sought to put an end 
to racial discrimination in all restaurants wherever 
situated regardless of whether there is any demonstra­
ble causal connection between the activity of the par­
ticular restaurant * * * and interstate commerce” 
(R. 48). Except where it was dealing with discrimi­
nation supported by State action in violation of the 
Fourteenth Amendment, Congress prohibited discrimi­
nation only in those establishments which have a close 
and intimate tie to interstate commerce—in the case of 
restaurants, through serving food which comes from 
out of State ( Section 201 (d) ). We think this amounts 
to a declared finding that in such establishments racial 
discrimination burdens and obstructs interstate com­
merce. But even if that affirmative inference is un­
warranted, the reasoning below has a fatal gap. Those 
challenging the constitutionality of an Act of Congress 
must show “ that by no reasonable possibility can the 
challenged legislation fall within the wide range of dis­
cretion permitted to the Congress” (United States v.



11

Butler, 297 U.S. 1, 67). Formal findings may aid the 
Court to understand the predicate of particular legis­
lation but “ [ejven in the absence of such aids the 
existence of facts supporting the legislative judgment 
is to be presumed, for regulatory legislation affecting 
ordinary commercial transactions is not to be pro­
nounced unconstitutional unless in the light of the 
facts made known or generally assumed it is of such 
a character as to preclude the assumption that it rests 
upon some rational basis within the knowledge and ex­
perience of the legislators” (United States v. Carotene 
Products Co., 304 U.S. 144, 152). Appellees have not 
only failed to make such a showing but the factual 
support for the legislation affirmatively appears.

For is Title I I  invalidated by the absence of pro­
vision for an administrative or judicial finding 
whether discrimination in an individual restaurant 
affects interstate commerce. United States v. Darby, 
312 U.S. 100, 120-121; Labor Board v. Reliance Fuel 
Co., 371 U.S. 2244

ARGUMENT

In the court below the government urged (1) that 
the bill should be dismissed for want of jurisdiction 
upon several grounds, among others because equity 
would not enjoin the enforcement of a statute where 
there was no threat to apply it to the plaintiff and no 
danger of injury; and (2) that if the district court *

* The arguments presented by appellees under the First, Fifth, 
Ninth, Tenth and Thirteenth Amendments are answered, so far 
as appears necessary, in our brief in Heart of Atlanta Motel, 
Inc. v. United States, "So. 515, this Term.



12

readied, the merits, Title I I  of the Civil Rights Act of 
1964 should be held constitutional.

Prom the standpoint of the immediate administra­
tion of the Civil Rights Act we would welcome a de­
cision upon the constitutionality of Title II as ap­
plied to establishments like appellees’ restaurant. 
The decision below, however, sustaining the power of 
a district court to render an opinion upon the consti­
tutionality of a federal statute upon the bare request 
of any person who alleges that he is subject to the 
Act, without any showing of irreparable injury, 
threatens such serious interference with the normal 
operations of the government as to require us to insist 
upon the jurisdictional objection in addition to argu­
ing the merits.

I
THE COMPLAINT SHOULD BE DISMISSED FOB WANT OF 

EQUITY JURISDICTION

In the present case plaintiffs sued only to enjoin a 
possible future suit for an injunction. Prior to the 
filing of suit neither the Attorney General nor the De­
partment of Justice even knew of the plaintiffs’ exist­
ence, much less any of the facts bearing upon the 
coverage of their restaurant under Section 201(c) (2) 
and their compliance with Section 201 (a). The only 
possible sanction that anyone can invoke against them 
is a civil action to compel future compliance.

We know of no precedent for such a superfluous 
action. Plaintiffs cannot be harmed by waiting to as­
sert their contentions as defenses if and when the At­
torney General (or a private party) seeks to enforce



13

the statute. Present relief is not only quite unneces­
sary, therefore, to protect their interests; it is also 
affirmatively harmful to the recognized and significant 
public interest in avoiding premature decision of con­
stitutional questions and in allowing authorized offi­
cials to exercise an informed discretion in administer­
ing regulatory legislation.

A. The Civil Rights Act of 1964 was carefully 
drawn so as to ensure that no proprietor of a “ place 
of public accommodation” would be subjected to any 
sanction or liability until after the applicability of 
Title I I  to his business had been determined in a dis­
trict court proceeding for an injunction with full op­
portunity for appellate review. Title I I  provides 
only for enforcement by a civil action for an injunc­
tion. There are no criminal or civil penalties. There 
is no provision for the award of damages. Section 
207(b) provides explicitly that “ [t]he remedies pro­
vided in the title shall be the exclusive means of en­
forcing the rights based on this title * * *.” 5 Appel­
lees can incur no legal sanctions until (1) their rights 
and duties under the Constitution and statute have 
been determined in the federal courts and (2) they 
have been ordered to comply with the statute. They 
are not even subjected to the familiar choice of obey­
ing the statute or incurring the risk of prosecution.

There neither is nor could be a showing that the 
mere existence of the statute and the general intention 
of the Attorney General to enforce it subjects ap­

5 I t  is possible that if outsiders conspire to prevent a restau­
rant from complying with Section 201, they can be prosecuted 
under 18 U.S.C. 241.



14

pellees to a threat of irreparable injury. Appellees 
contend that the statute is void because it is uncon­
stitutional and allege that their business and property 
would suffer if  they complied with the statute (Com­
plaint, par. 7) ; but they are not currently complying, 
do not intend to comply, and incur no risk of any 
sanctions for failure to comply until after their 
rights and duties have been determined in judicial 
proceedings. There is also an allegation that 
“ [enforcement, or attempts to enforce said Act 
against plaintiffs by either defendants or by other 
so-called ‘aggrieved’ persons would subject plaintiffs 
to the burdens, inconvenience and expense of litiga­
tion and the aggravation of such burdens and ex­
penses occasioned by a potential multiplicity of suits” 
(Complaint, par. 8). This allegation will not survive 
analysis. An enforcement suit by the Attorney Gen­
eral, if one were brought, could subject appellees to 
no greater trouble or expense than their own suit 
against the Attorney General; indeed, from appellees’ 
standpoint, the former expense was contingent at 
worst whereas by prosecution of this action they 
insisted upon incurring those costs. And an injunc­
tion issued against the Attorney General would not 
bar suits by aggrieved persons. The grounds of the 
decision might discourage future litigation, but no 
more so than would the grounds of decision in the 
first suit for an injunction brought against appellees 
under the statute. The likelihood or unlikelihood of 
a multiplicity of suits is identical in both circum­
stances. Nor is the possibility that an unknown per­
son, at some unknown future time, may file some



15

unidentified suit, based perhaps upon new conditions^ 
a sufficient ground for equitable relief.

In sum, appellees have failed to show irreparable 
injury or other grounds for an injunction, because 
they have an entirely adequate remedy in the defense 
of any action for an injunction that the Attorney 
General may bring against them. The complaint is 
no more than a request for an immediate advisory 
opinion upon the constitutionality of Title I I  of the 
Civil Rights Act, having no foundation other than 
the possibility that the Attorney General may, at some 
future date, seek an injunction requiring appellees 
prospectively to comply with the Act. Whether that 
be enough for a “ case or controversy” may be open 
to argument, but it is plainly insufficient to support 
equity jurisdiction in a suit intended to determine 
the constitutionality of a federal statute.

B. In a case wdiere a party seeks to enjoin enforce­
ment of a law on constitutional grounds, the courts are 
insistent not only that his claim be concrete and 
ripe, but that he be able to show the threat of 
immediate, irreparable injury which makes it neces­
sary for equity to intervene without delay. Speaking 
of a suit to enjoin a State regulatory law imposing 
criminal sanctions, Chief Justice Hughes stated in 
Spielman Motor Co. v. Dodge, 295 TJ.S. 89, 95:

The general rule is that equity will not inter­
fere to prevent the enforcement of a criminal 
statute even though unconstitutional. Hygrade 
Provision Co. v. Sherman, 266 TJ.S. 497, 500. 
See, also, In  re Sawyer, 124 U.S. 200, 209-211; 
Davis & Farnum Manufacturing Co. v. Los



16

Angeles, 189 U.S. 207, 217. To justify such 
interference there must he exceptional circum­
stances and a clear showing that an injunction 
is necessary in order to afford adequate pro­
tection of constitutional rights. See Terrace 
v. Thompson, 263 U.S. 197, 214; Packard v. 
Banton, 264 U.S. 140,143; Tyson v. Banton, 273 
U.S. 418, 428; Cline v. Frink Dairy Co., 274 
U.S. 445, 452; Ex parte Young, 209 U.S. 123, 
161-162. We have said that it must appear 
that “the danger of irreparable loss is both 
great and immediate” ; otherwise, the accused 
should first set up his defense in the state court, 
even though the validity of a statute is chal­
lenged. * * *

The point was restated by Chief Justice Stone in 
Douglas v. City of Jeannette, 319 U.S. 157, 163-164:

I t is a familiar rule that courts of equity do 
not ordinarily restrain criminal prosecutions. 
No person is immune from prosecution in good 
faith for his alleged criminal acts. Its immi­
nence, even though alleged to be in violation of 
constitutional guaranties, is not a ground for 
equity relief since the lawfulness or constitu­
tionality of the statute or ordinance on which 
the prosecution is based may be determined as 
readily in the criminal case as in a suit for an 
injunction.

Similarly, the courts have repeatedly refused to 
enjoin federal officials from proceeding against vio­
lations of federal statutes. E.g., Yarnell v. Hills­
borough Packing Co., 70 F. 2d 435 (C.A. 5) ; Ryan 
v. Amazon Petroleum Corp., 71 F. 2d 1, 6 (C.A. 5) ; 
Richmond Hosiery Mills v. Camp, 74 F. 2d 200 (C.A.



17

5) ; Sparks v. Mellwood Dairy, 74 F. 2d 695 (C.A. 6) ; 
Board of Trade of Kansas City v. Milligan, 90 F. 2d 
855 (C.A. 8). The mere fact that the government’s 
law enforcement officers stand ready to perform their 
enforcement duties under the Act “falls far short of 
such a threat as would warrant the intervention of 
equity.” Watson v. Buck, 313 U.S. 387, 400; United 
Public Workers v. Mitchell, 330 U.S. 75, 88. See, 
also, Lion Manufacturing Corporation v. Kennedy, 330 
F. 2d 833 (C.A. D.C.).

These are some cases which indicate a softening of 
the requirement that the danger of irreparable loss 
be both “great and immediate.” E.g., Browder v. 
Gayle, 142 F. Supp. 707, affirmed, 352 U.S. 902, and 
Croivn Kosher Supermarket v. Gallagher, 176 F. 
Supp. 466, reversed on other grounds, 366 U.S. 617. 
Possibly Wickard v. Filburn, 317 U.S. I l l ,  was such 
a case, although the point is not discussed in the opin­
ion. We know of no decision, however, remotely sug­
gesting that the bare allegation that one is covered by 
an allegedly unconstitutional statute providing no 
penalties and creating no sanctions save a possible 
action for prospective relief is sufficient to obtain an 
injunction against the normal processes of law en­
forcement. To such a case as this, therefore, the 
three considerations opposed to anticipatory interven­
tion by equity with the processes of law enforcement 
through criminal prosecution apply with still greater 
force.

First, the judicial branch will not adjudicate ques­
tions of constitutionality in the absence of necessity.



18

“I t must be evident to any one that the power to de­
clare a legislative enactment void is one which the 
judge, conscious of the fallibility of the human judg­
ment, will shrink from exercising in any case where he 
can conscientiously and with due regard to duty and 
official oath decline the responsibility. ’ ’ 1 Cooley, Con-
stitutional Limitations (8th ed.), p. 332, quoted by 
Mr. Justice Brandeis concurring in Ashwander v. 
Tennessee Valley Authority, 297 U.S. 288, 341, 345. 
The principle is exemplified by familiar precepts: the 
Court will not pass upon the constitutionality of leg­
islation in a friendly, non-adversary proceeding;6 
or when the ease may be decided upon another 
ground; 7 or when the action is brought by one who 
fails to show that he has been injured by the opera­
tion of the statute.8 The basic policy is also imple­
mented by the rule barring injunction against the 
enforcement of a statute by public officials where the 
complainant, without risk of irreparable injury, could 
wait and raise his constitutional defense in any action 
brought against him.

Second, the rule is necessary to prevent interfer­
ence with the normal processes of law enforcement. 
I f  the possibility that appellees might be sued by 
the Attorney General to compel them to comply with 
the statute at some indeterminate future date were

e E.g., Chicago <& Grand Trunk Ry. v. 'Wellman, 143 U.S. 
339, 345.

7 E.g., Siler v. Louisville and Nashville R. Co., 213 U.S. 175, 
191; Berea College v. Kentucky, 211 U.S. 45, 53.

8 E.g., Tyler v. Judges of the Court of Registration, 179 U.S. 
405 ; Hendrick v. Maryland, 235 U.S. 610, 621.



19

sufficient predicate for them to bring action against 
the Attorney General, any proprietor of any place of 
public accommodation in the United States, who is 
potentially subject to the Civil Rights Act of 1964, 
could seek an advisory determination as to whether 
the statute could be constitutionally applied to him. 
The resources of the government are not unlimited. 
I t  is essential that the time and funds available for 
enforcement be allocated in a manner that will best 
promote the public interest. The necessity of de­
fending every case in which one potentially subject 
to the statute desires an advisory opinion upon its 
constitutionality would interfere significantly with the 
normal processes of law enforcement.

The facts in the present case are particularly strik­
ing. There were, in 1958 (the last year for which 
published Census figures are available),9 over 115,000 
restaurants, lunch counters, and gasoline stations in 
16 Southern or border States 10 which, if they meet 
the statutory test of “affecting commerce,” as most 
will, are places of public accommodation under Sec­
tion 201(b)(2) of the 1964 Act. There are, in addi­
tion, about 20,000 hotels and motels in these States 
which fall under Section 201(b)(1), and another 
6,000 motion picture theaters which fall under Sec­
tion 201(b)(3). The Civil Rights Division of the

9 The 1958 Census of Business, compiled by the U.S. Bureau 
of the Census. A similar study was made during 1963, but it 
has not yet been published.

10 Texas, Louisiana, Oklahoma, Arkansas, Mississippi, Ala­
bama, Tennessee, Kentucky, Florida, Georgia, South Carolina, 
North Carolina, Virginia, West Virginia, Maryland, Delaware.



20

Department of Justice lias 55 lawyers to handle liti­
gation under Title II, as well as all the other titles 
of the 1964 Act, the 1960 Act,11 the 1957 Act,12 and the 
early federal civil rights statutes.13 I t  is hardly nec­
essary to point out the import of these facts. The 
Department of Justice can only perform its functions 
under these statutes if it is free to select carefully 
the. cases it will bring so as to use its limited man­
power in the most effective way. The decision as to 
which cases will be litigated, and where and when, 
cannot be left to the private parties subject to the 
public accommodations provision of the 1964 Act.

There are other important administrative considera­
tions. Congress has provided in Title X of the 1964 
Act for a Community Relations Service, now headed by 
Governor Leroy Collins, which is intended “ to pro­
vide assistance to communities and persons therein 
in resolving disputes, disagreements, or difficulties 
relating to discriminatory practices based ion 
race * * V ’ 78 Stat. 267. I t  is hoped that this ap­
proach-voluntary negotiation and discussion—will 
avoid the necessity of numerous legal proceedings 
under Title II. The Department of Justice can co­
ordinate its enforcement activities under Title I I  
with the activities of the Director of the Community 
Relations Service under Title X, but the efforts of 
the Community Relations Service could be under­
mined by untimely suits by those opposed to the

11 74 Stat. 86.
12 71 Stat. 637.
1318 U.S.C. 241, 242.



2 1

provisions of the statute and equally opposed to volun­
tary compliance with desegregation.

Third, a rule allowing suit to enjoin enforcement 
of the Civil Rights Act, even though the plaintiff 
would be in no way harmed by awaiting the outcome 
of the statutory proceedings, could not be confined 
to this statute alone. The same principle would be 
applicable under any other regulatory statute, such 
as the Rational Labor Relations Act, the Fair Labor 
Standards Act, the Securities and Exchange Commis­
sion Act, etc. The potentiality for interference with 
the normal administration of such laws is obvious. 
Nor do we see how the principle, once established, 
could be confined to suits raising constitutional issues, 
unless upon the ground that the action is against the 
United States where it is not alleged that the Attor­
ney General is acting without constitutional author­
ity.14 There would seem to be no less ground for 
asserting equitable jurisdiction in the case of a claim 
that a regulatory statute did not apply to a complain­
ant against whom it might be enforced, or did not 
outlaw his conduct, or otherwise bear an interpreta­
tion which the government might put upon it.

C. The eases cited by the court below give no sup­
port to the assertion of equity jurisdiction to enjoin 
the enforcement of Title II. Each involved a threat 
of immediate substantial injury to the plaintiff; none 
even approached the present case, where the plaintiff 
cannot be harmed by awaiting any proceedings

14 See Brief for the Respondent in Rabinowitz v. Kennedy, 
Attorney General, No. 287, October Term, 1963, pp. 39-40.



22

against him. Indeed, the cases cited do not even pro­
vide authority for the proposition that a person sub­
ject to a regulatory statute with immediate penal 
sanctions can obtain an adjudication as to the con­
stitutionality of the statute without incurring the risk 
of violation.

The majority of the cases presented situations like 
that in Terrace v. Thompson, 263 17. S. 197, where the 
existence of the statute imposing severe penalties 
and forfeiture of the land upon one who leased farm­
ing land to an alien who had not declared an intention 
to become a citizen, and also upon the alien who 
acquired an interest in the land, operated ex proprio 
vigore to interfere with the owner’s right to dispose 
of his property and the alien’s right to pursue the 
occupation of farmer (263 U.S. 215-216):

The threatened enforcement of the law deters 
them. In order to obtain a remedy at law, 
the owners, even if they would take the risk 
of fine, imprisonment and loss of property, 
must continue to suffer deprivation of their 
right to dispose of or lease their land to any 
such alien until one is found who will join 
them in violating the terms of the enactment 
and take the risk of forfeiture. Similarly 
Nakatsuka must continue to be deprived of his 
right to follow his occupation as farmer until 
a land owner is found who is willing to make a 
forbidden transfer of land and take the risk of 
punishment. The owners have an interest in 
the freedom of the alien, and he has an interest 
in their freedom, to make the lease.

The same kind of interference with an advanta­
geous relationship for which there was no adequate



23

remedy at law was proved in Pierce v. Society of 
Sisters, 268 U.S. 510; Euclid v. Ambler Realty Go., 
272 U.S. 365; and Public Utilities Commission of 
California v. United States, 355 U.S. 534.10 The 
plaintiff’s interest in, and need for, an equitable 
remedy is obvious where the statute imposes criminal 
penalties on those engaged in business dealings with 
the plaintiff unless they discontinue their dealings. 
Then there is no adequate remedy at law, for the 
plaintiff cannot require those dealing with him to 
risk criminal penalties to test the validity of the 
statute.

In Pennsylvania v. West Virginia, 262 U.S. 553, 
both States were seeking to withdraw natural gas from 
the same pool under circumstances in which the with­
drawal by one would cause widespread injury in the 
other. Carter v. Carter Coal Co., 298 U.S. 238, was 
not a suit against the Attorney General to enjoin en­
forcement but a minority stockholder’s bill to enjoin 
the corporation from complying with the statute; in 
any event, irreparable harm was threatened. The 
point was not raised in Adler v. Board of Education, 
342 U.S. 485, undoubtedly because the action had been 
brought in a State court and presented no question 
of federal equity jurisdiction. In Currin v. Wallace, 15

15 In  Public Utilities Commission of California v. United 
States, 355 U.S. 534, the Court did not discuss the irreparable 
injury, but the theory of equity jurisdiction clearly appears from 
the Brief for the United States, No. 23, October Term 1&57, 
pp. 23, 27.



24

306 U.S. 1, the opinion of the lower court clearly 
shows that the plaintiffs would have incurred penal­
ties “which would be ruinous to them” if they violated 
the statute and its constitutionality were.upheld (95 
F. 2d 856, 861). In short, none of the cases relied 
upon by the court below provide support for the pres­
ent case, where the plaintiffs have not even shown that 
they have been harmed in any way by the operation of 
the statute.

I I
SECTION 201 OP THE CIVIL RIGHTS ACT OF 1964 , AS AP­

PLIED TO a p p e l l e e ’s  RESTAURANT, IS A VALID EXERCISE
OF THE COMMERCE POWER

In our brief in Heart of Atlanta Motel, Inc. v. 
United States, Ho. 515, this Term, we outlined the 
general plan of Title I I  of the Civil Rights Act of 
1964 which grants all persons a right to the full and 
equal enjoyment of the goods, services or facilities of 
any “place of public accommodation” as defined 
therein, and we endeavored to show that, both in gen­
eral plan and in specific application to hotels and 
motels, Title I I  is a valid exercise of the power to 
regulate interstate commerce. In this case we deal 
with the application of Title I I  to a restaurant which 
serves the general public and receives the products 
which it sells from other States.16

Section 201 (b) and (c) define as a place of public 
accommodation subject to the duty to make its goods,

16 The challenges to Title I I  based upon the Fifth, Ninth, 
Tenth and Thirteenth Amendments are answered in our Heart 
of Atlanta brief. Appellees’ argument based upon the First 
Amendment requires no response. - -



25

services and facilities available without regard to race 
or color—

any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility engaged 
in selling food for consumption on the premises

if—
a substantial portion of the food which it serves 
* * * has moved in commerce.

Appellees allege that their restaurant is covered by 
the foregoing provision and that they are, neverthe­
less, engaged in racial discrimination. We accept the 
allegations. The district court found that in the 
twelve months preceding the passage of the Civil 
Eights Act of 1964 appellees purchased approximately 
$150,000 worth of food locally, but that about 46 per­
cent of its purchases were meat which had been 
shipped in to the local packer and -wholesaler from 
outside the State of Alabama (E. 36). The govern­
ment on its part agreed in the lower court that the 
discrimination at appellees’ restaurant was not being 
supported by the State of Alabama within the mean­
ing of Section 201(d). Thus, the question is whether 
Title II, as applied to a restaurant receiving about 
$70,000 worth of food indirectly from outside the 
State, is a valid exercise of the power of Congress to 
regulate interstate commerce (Art. I, Sec. 8, cl. 3) 
and to enact all laws necessary and proper for the 
execution of the commerce power (Art. I, Sec. 8, cl. 
18). The Civil Rights Cases, 109 U.S. 3, throw no 
light upon the issue because the Civil Eights Act of

748 011 - 8-5— ----8



26

1875, 18 Stat. 335, was not conceived or sought to be 
justified under the commerce power.17

The major premise of our argument is the familiar 
rule that the powers thus delegated to Congress ex­
tend to local activities, even though they are not 
themselves interstate commerce, if they have such a 
close and substantial relation to interstate commerce 
that their regulation is appropriate to foster or pro­
mote such commerce, or to relieve it from burdens or 
obstructions. The minor premise of our argument 
is that Congress, to which the economic question is 
primarily committed, had ample basis upon which 
to find that racial discrimination at restaurants which 
receive from out-of-State a substantial portion of. the 
food served does in fact impose commercial burdens 
of national magnitude upon interstate commerce.

17 The opinion below states that the court had been advised 
that the Solicitor General, in brief, had urged upon the Su­
preme Court the sufficiency of the grant of power in the com­
merce clause to sustain the challenged legislation. Evidently 
the court was partially misinformed. The brief filed by Solici­
tor General Phillips at the October Term, 1882, makes no such 
argument, nor is any contained in the summary of his oral 
argument in the United States Eeports, 109 U.S. 3, 5-7. At 
the October Term, 1879, a brief had been filed in three of the 
cases by Attorney General Devens. One sentence stated that 
inns were essential instrumentalities of commerce, which it 
was the province of the United States to regulate prior to the 
Civil War amendments. This appears to have been a passing 
comment for the entire thrust of the brief lies in the proposi­
tion that the power to enact the Civil Eights Act of 1875 was 
granted by Section 5 of the Fourteenth Amendment.



27

A. TH E POWER TO REGULATE INTERSTATE COMMERCE EXTENDS TO 
LOCAL ACTIVITIES WHOSE REGULATION IS APPROPRIATE TO PRO­
TECT INTERSTATE COMMERCE PROM BURDENS OR OBSTRUCTIONS

1. The power of Congress is not confined to the regulation of 
the course of interstate commerce but extends to matters sub­
stantially affecting it

Article I, Section 8, clause 3 confers upon Con­
gress the power “To regulate Commerce * * * among 
the several States.” Clause 18 of the same Article 
grants the power “ To make all Laws which shall be 
necessary and proper for carrying into Execution 
the foregoing Powers * * Under those provi­
sions the Congress has ample power not only to regu­
late interstate travel, transportation' and communi­
cation, but also to deal with other matters which sub­
stantially affect such commerce even though they 
might be local when viewed in isolation. “The com­
merce power,” Chief Justice Stone held for a unani­
mous court in United States v. Wrightwood Dairy 
Go., 315 U.S. 110, 119, “is not confined in its exercise 
to the regulation of commerce among the states. I t 
extends to those activities intrastate. which so affect 
interstate commerce, or the exertion of the power of 
Congress over it, as to make the regulation of them 
appropriate means to the attainment of a legitimate 
end, the effective execution of the granted power to 
regulate interstate commerce.” Mr. Justice Jackson, 
also speaking for a unanimous court, restated the 
principle in Wickard v. Filburn, 317 U.S. I l l ,  125, in 
words precisely applicable to the present ease:

* * * even'if appellee’s activity be looted and 
though it may not be regarded as commerce, it

746- 011— 64— 4



28

may still, whatever its nature, be reached by 
Congress if it exerts a substantial economic 
effect on interstate commerce, and this irre­
spective of whether such effect is what might 
at some earlier time have been defined as 
“direct” or “indirect.”

See, also, Labor Board v. Jones & Laughlin Steel 
Corp., 301 U.S. 1, 37; United States v. Darby, 312 
U.S. 100, 119; Labor Board v. Reliance Fuel Corp., 
371 U.S. 224, 226-227.

There is no novelty in this principle, nor was it 
new in the cases cited above. The principle was 
established by Chief Justice Marshall, speaking for 
the Court in Gibbons v. Ogden, 9 Wheat. 1, 195, one 
hundred and forty years ago:

The genius and character of the whole govern­
ment seem to be, that its action is to be applied 
to all those external concerns of the nations 
and to those internal concerns which affect the 
States generally * * *. [Emphasis added.]

In  describing the local activities which Congress 
could not regulate he was careful to exclude from 
the definition—and thus mark as within the federal 
commerce power—those local activities which affect 
other States and with which it is necessary to deal in 
order to regulate interstate commerce. Thus, he 
described the local activities removed from federal 
action as ibid.—

those which are completely within a particular 
State, which do not affect other States, and 
with which it is not necessary to interfere, for 
the purpose of executing some of the general 
powers of the government. . ..



29

Although the subsequent course of decision included 
some departures from the original principle,18 the prin­
ciple found frequent application even prior to the 
Labor Board cases and other decisions cited above. 
I t was applied to violence shutting down production 
at a coal mine whence coal might be shipped in inter­
state commerce, Coronado Coal Co. v. United Mine 
Workers, 268 U.S. 295, to the activities of a local grain 
exchange shown to have an injurious effect upon inter­
state commerce, Chicago Board of Trade v. Olsen, 
262 U.S. 1, to regulation of the intrastate rates of 
interstate carriers, Houston & Texas By. v. iUnited 
States, 234 U.S. 342; Railroad Comm, of Wisconsin v. 
Chicago B. & Q. R. Co., 257 U.S. 563, to the safety 
devices upon rolling stock moving in local commerce, 
Southern Ry: Co. v. United States, 222 U.S. 20, and 
to the regulation of hours worked by employees en­
gaged in intrastate activity related to the movement 
of any train, Baltimore dc Ohio R. Co. v. Interstate 
Commerce Commission, 221 U.S. 612. In  United

18 The chief departures are United States- v. E. C. Knight, 
156 U.S. 1 (rejected in Standard Oil Co. v. United States. 221 
U.S. 1, 68-69, and Labor Board v. Jones &Laughlin Steel Gory., 
301 U.S. 1, 38-39); Adair v. United States, 208 U .S.'161 (sub­
stantially overruled in Texas and New Orleans- Railroad v. 
Brotkmhood of Railway and .Steamship Clerics, 281 U.S; 548; 
Virginian Railway v. System Federation No. Jfi, 300 U S. 515); 
Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (dis­
approved in United States v. Lovyden, 308 U.S. 225, 239); First 
Employers’ Liability Cases, 207 U.S. 463 (disapproved in Vir­
ginian Ry. v. System Federation No. 40, 300 U.S. 515, 557), 
Carter v. Carter Coal Co., 298 U.S. 238 (disapproved in United 
States v. Darby, 312 U.S. 100, and overruled in Wiolcard v. Fil- 
burn. 317 U.S. I l l ,  122, n. 21); Hammer v. Da.genhart, 247 U.S. 
251 (overruled in United States v. Darby, 312 B.S. 100, 117).



30

States v. Ferger, 250 U.S. 199, 203, Mr. Chief Justice 
White pointed out that the power of Congress “must 
include the authority to deal with obstructions to inter­
state commerce (In re Debs, 158 U.S. 564) and with a 
host of other acts which, because of their relation to 
and influence upon interstate commerce, come within 
the power of Congress to regulate, although they are 
not interstate commerce in and of themselves. ”

There was comparatively little federal regulation of 
interstate commerce in the nineteenth century. The 
need and therefore the volume of legislation increased 
greatly in the present century. Furthermore, the in­
creasing interdependence of all parts of the economy 
and changes in commercial practices have, in fact, 
linked to interstate commerce through close and sub­
stantial connections many activities which, as a matter 
of fact, had no effect upon such commerce in earlier 
years. This is the reason the governing principle has 
found its clearest application in decisions sustaining 
modern economic legislation. The principle, however, 
as shown by the Court’s opinion in Gibbons v. Ogden, 
is.as old as the Constitution itself. '■

g. The. power to regulate local matters substantially affecting 
interstate commerce extends to retail establishments includ­
ing restaurants . -

A host of familiar precedents sustains the power of 
Congress to regulate the. activities of retail establish­
ments, including restaurants,, which directly or indi- 

* rectly receive goods from out of State,- where those 
‘ activities burden or obstruct , interstate commerce. In 
Labor Board x. Reliance Fuel C'orp,, 371 U.S. 224, this



31

Court held that the National Labor Relations Board 
had jurisdiction over unfair labor practices committed 
by a retail distributor of fuel oil, all of whose sales 
were local, where the retailer obtained the oil from a 
wholesaler who imported it from another State. That 
decision accords with a long series of cases basing 
federal power over the labor relations of a retail busi­
ness on the threat to the market for interstate goods 
caused by unfair labor practices that may decrease 
its purchase of goods originating in other States. 
See, e.g., Labor Board v. Denver Bldg. Council, 341 
U.S. 675, 683-684; May Department Stores Co. v. 
Labor Board, 326 U.S. 376 (retail store) ; J. L. Bvan- 
dais & Sons v. Labor Board, 142 F. 2d 977 (C.A. 8), 
certiorari denied, 323 U.S. 751 (retail store) ; McLeod 
v. Bakery Drivers Local, 204 P. Supp. 288 (E.D. N.Y.) 
(bakery) ; Retail Fruit <& Vegetable Union v. Labor 
Board, 249 P. 2d 591 (C.A. 9) (retail store) ; In t’l 
Brotherhood v. Labor Board, 341 U.S. 694 (construc­
tion project) ; Local 74 v. Labor Board, 341 U.S. 707 
(store, dwelling renovation) ; Meat Cutters v. Fairlawn 
Meats, 353 U.S. 20 (retail grocery).

In particular, the Labor Board has on many occa­
sions regulated labor relations in restaurants, on the 
theory that disputes in restaurants tend to diminish 
the quantity of food and other products purchased by 
the restaurant to serve its customers. See, e.g., Labor 
Board v. Morrison Cafeteria Co. of Little Rock, 311 
P. 2d 534 (C.A. 8) ; Labor Board v. Local Joint Exec... 
Board, 301 P. 2d 149 (C.A. 9) ; Labor Board v. Childs 
Co., 195 F. 2d 617 (C.A. 2) ; Labor Board v. Laundry



3 2

Drivers Local, 262 F. 2d 617 (C.A. 9); Labor Board 
v. Gene Compton’s Corp., 262 F. 2d 653 (C.A. 9); 
Labor Board v. Howard Johnson Co., 317 F. 2d 1 
(C.A. 3), certiorari denied, 375 TJ.S. 920; Kennedy v. 
Los Anegeles Joint Exec. Board, 192 F. Supp. 339 
(S.D. Cal.) ; Culinary Workers & Bartenders Union v. 
Labor Board, 310 F. 2d 853 (C.A.D.C.); Smitley v. 
Labor Board, 327 F. 2d 351 (C.A. 9) ; Stanton Enter­
prises, Inc., 147 NLRB No. 81, A CCH Lab. L. Rep. 
21,075, para. 13,211; Stork Restaurant, Inc. v. McLeod, 
312 F. 2d 105 (C.A. 2) ; McLeod v. Chefs, Cooks, 
Pastry Cooks & Assistants Union, 280 F. 2d 760 (C.A. 
2); McLeod v. Chefs, Cooks, Pastry Cooks & As­
sistants Local 89, 286 F. 2d 727 (C.A. 2).19

As pointed out in more detail, with appropriate 
citation of precedents, in our brief in Heart of A t­
lanta Motel, Inc. v. United States, No. 515, pp. 33-36, 
the same principle has been applied under the Sher­
man and Federal Trade Commission Acts.

3. Cases Holding that, interstate commerce ends when goods 
“come to rest’’' in a State are irrelevant to the power of 
Congress to regulate local activities which substantially 
burden interstate commerce

Implicit in what we have already said is the dis­
tinction between the present case and cases holding 
that interstate commerce ends when goods come to 
rest in the State of destination. When the issue is 
whether the goods are immune from State taxation,

19 See also, Brermamls French Restaurant, 129 N.L.R.B. 52; 
Joe Hunt's Restaurant, 138 N.L.R.B. 470; Childs Co., 88 
N.L.R.B 720; Childs Co., 93 N.L.R.B. 281; Bolton & Hay, 
100 N.L.R.B. 361; The Stauffer Corp., 101 N.L.R.B. 1331; Mil- 
Bur, Inc., 94 N.L.R.B. 1161.



33

or whether the States may not regulate the conduct 
because of the need for uniformity, then it may be 
pertinent to ask whether the goods have ceased to be 
part of interstate commerce,20 for the commerce clause 
does not operate ex proprio vigore to exclude State 
taxation or State regulation of activities which are 
not part of, but affect, interstate commerce. The 
question is not dispositive, however, in judging the 
reach of the federal power to regulate, for federal 
power extends, under the principles stated above, to 
activities which are outside the stream of commerce 
but substantially affect it. Thus, there are many 
instances in which a State may tax or regulate goods 
and activities which are also regulated by federal law. 
See, e.g., South Carolina State Highway Dept. v. 
Barnwell Bros., 303 U.S. 177; Mints v. Baldwin, 289 
TT.S. 346.21

20 The continued vitality of the “come to rest” doctrine is 
open to question in the field of State taxation, but the change 
is towards the enlargement of State power. Compare, e.g., 
Broton v. Maryland, 12 Wheat. 419, and Hooven <& Allison 
Co. v. Evatt, 324 U.S. 652, with Woodruff v. Parham., 8 Wall. 
123, and Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 
534.

21 Although a State may tax a retail sale of drugs which 
were originally imported from other States (Woodruff v. Par­
ham, 8 Wall. 123), Congress may regulate that sale ( United 
States v. Sullivan, 332 U.S. 689). While goods stored in a 
warehouse have come sufficiently to rest to be subject to a 
State property tax (Woodruff v. Parham, supra), their storage 
is also subject to federal regulation (United States v. Wieseru- 
feld Warehouse Co., 376 U.S. 86). In  each of these cases the 
goods have in some sense “come to rest” after an interstate 
sale and transportation, but the power of Congress to regulate 
subsequent sales or use of the goods continues.



34

Such cases as Weigle v. Curtice Bros. Co., 248 U.S. 
285,; Pacific States Box and Basket Co. v. White, 
296 U.S. 176, and Packer Corp. v. Utah, 285 U.S. 105, 
relied upon by the State of Florida (Brief Amicus 
Curiae, pp. 30-33), are therefore irrelevant.

United States v. Yellow Cab Co., 332 U.S. 218, 
presented a similar issue (although it was decided in 
a statutory and not m a constitutional context). Be­
cause the government did not allege or prove that a 
monopoly of local taxi service would substantially 
interfere with or burden other interstate commerce, 
it was necessary to the government’s case to show 
that the monopoly was a restraint of the channels 
of interstate travel itself, i.e., that the taxis which 
carried passengers to and from the railroad stations 
as part of a general local business were themselves 
instrumentalities of interstate commerce. The Court 
was therefore called upon to “ mark the beginning 
and end of a particular kind of interstate commerce 
by its own practical considerations” (332 U.S. at 
231), and it concluded that interstate travel began 
and ended “at the station.” The opinion also makes 
it clear, however, that the Court did not hold that 
the business of operating taxis was beyond the scope 
of federal regulation (id. at 232-233). The latter 
question depends, as in other cases, upon whether 
the activities in fact burden or obstruct, or otherwise 
affect, interstate commerce. Superior Court of 
Washington v. Yellow Cab Co., 361 U.S. 373, sum­
marily reversed a State injunction on the ground that 
the National Labor Relations Board has exclusive



35

jurisdiction over unfair labor practices of a similar 
taxi service.
B. RACIAL DISCI! IM  IN AT'ION IN  RESTAURANTS SELLING FOOD FROM 

OUT-OF-STATE SOURCES BURDENS AND OBSTRUCTS INTERSTATE 

COMMERCE

Under the principle developed above, the power of
Congress to prohibit racial discrimination in restau­
rants which receive a substantial portion of the food 
they serve directly or indirectly from out-of ■‘•State 
sources depends upon whether such discrimination 
would in fact burden or obstruct the movement of 
goods in interstate commerce. What affects com­
merce is a practical inquiry to be answered from the 
course of business. Cf. Swift & Go. v. United States, 
196 U.S. 375, 398 (“commerce among the States 
is not a technical legal conception, but a practical 
one, drawn from the course of business” ). The 
practical inquiry, moreover, is primarily for Con­
gress. As the Court said in Norman v. Baltimore 
and Ohio R. Go., 294 U.S. 240, 311, speaking of 
whether the gold clauses in private bonds sufficiently 
interfered with the monetary policy of Congress to 
justify their invalidation under the power to regulate 
the currency—

Whether they may be deemed to be such an 
interference depends upon an appraisement 
of economic conditions and upon determina­
tions of questions of fact. With respect to 
those conditions and determinations, the Con­
gress is entitled to its own judgment. We may 
inquire whether its action is arbitrary or ca­
pricious, that is, whether it has reasonable rela­



36

tion to a legitimate end. I f  it is an appropriate 
means to such an end, the decision of the Con­
gress as to the degree of the necessity for the 
adoption of that means, is final. McCulloch v. 
Maryland, supra, pp. 421, 423; Juillard v. 
Greenman, supra, p. 450; Stafford v. Wallace, 
258 U.S. 495, 521; Everard’s Breweries v. Bay, 
265 U.S. 545, 559, 562.

The same rule applies to the commerce clause. The 
Court held in Stafford v. Wallace, 258 U.S. 495, 521—

Whatever amounts to more or less constant 
practice, and threatens to obstruct or unduly to 
burden the freedom of interstate commerce 
is within the regulatory power of Congress 
under the commerce clause, and it is primarily 
for Congress to consider and decide the fact of 
the danger and meet it. [Emphasis added.]

See, also, Chicago Board of Trade r. Olsen, 262 U.S. 1, 
32; Labor Board v. Jones & LaughUn Steel Corp., 
301 U.S. 1, 37.

The evidence before Congress gave it ample ground 
for concluding that racial discrimination in restau­
rants that receive food from out-of-State sources is so 
prolific a source of burdens and obstructions to inter­
state commerce as to make the elimination of discrimi­
nation a reasonable means of promoting the interstate 
flow of goods. The evidence is presented in our brief 
in Heart of Atlanta Motel, Inc. v. United States, No. 
515, this Term, but we repeat it here (with some addi­
tions and modifications) for the sake of completeness.

In  doing so we emphasize that the relationship 
demonstrated is between the racial discrimination in 
restaurants and the flow of interstate commerce. We



37

have no need to argue whether the fact that a restau­
rant serves food which originated in other States is 
a sufficient basis for the regulation. While we think 
that it is sufficient, we assume arguendo that the ap­
pellees were correct, in their brief in the district court, 
in arguing that the power of Congress to regulate ac­
tivities affecting commerce (as distinguished from the 
actual movement of goods in commerce) depends upon 
a showing that regulation of the activities could 
reasonably be found adapted to promoting the flow 
of goods.22 For the prohibition of discrimination in

22 Appellees’ argument was that although Congress has power 
to regulate the interstate movement of goods and persons en- 
gaged in interstate travel, transportation or communication for 
any purpose, i t  has power to regulate local activities affecting 
commerce, especially in the State where the goods are received, 
only if it appears that the regulation of the local activities 
fosters the interstate commerce. In this way appellees would 
distinguish such cases as Mitchell v. United States, 313 U.S. 80; 
Henderson, v. United States 339 TJ.S. 816; and also such author­
ities as the Lottery Case, 188 TJ.S. 321; Caminetti v. United 
States, 242 U.S. 470, and Brooks v. United States, 267 TJ.S. 432.

Although we are content to argue the present, case upon the 
assumption that the power of Congress is thus limited, appel­
lees’ analysis seems erroneous. The Court has never held that 
Congress has power to regulate all phases of a man’s conduct 
solely because he has previously imported goods in interstate 
commerce, but it has held that Congress may prohibit one who 
has imported interstate goods from distributing those goods in 
a way which is damaging to the locality. In  United States v. 
Sullivan, 332 U.S. 689, the Court held, without dissent on this 
point, that Congress has power to forbid a small retail druggist 
from selling drugs without the form of label required by the 
Federal Food, Drag, and Cosmetic Act, 21 U.S.C. 201, et seq., 
even though the drugs were imported in properly labeled bottles 
from which they were not removed until put on the shelves of 
the local retailer. See also Federal Trade Conwvisswn V. Matndel



38

covered restaurants falls squarely within that prop­
osition.

1. Racial discrimination m  restaurants serving food from out- 
of-State is a prolific source of disputes burdening and ob­
structing interstate commerce

Where a restaurant serves food received from 
interstate commerce, either directly or indirectly, any 
dispute involving the establishment which causes it 
to close or reduces its patronage will curtail its pur­
chases and thus diminish the flow of goods in inter­
state commerce. Current history makes plain the 
tendency of a practice of racial discrimination to 
produce such disputes with the consequent interrup­
tion in the flow of goods from other States. The situ­
ation is the same in principle, therefore, as the count­
less cases in which the courts have sustained the 
application of the National Labor Relations Act to 
establishments receiving goods in interstate com­
merce on the ground that a labor dispute at such an
Bros., 359 U.S. 385; McDermott v. Wisconsin, 228 U.S. 115. 
The restaurateur practicing racial segregation who purchases 
food originating in another State for service in a commercial 
restaurant, is using interstate commerce to perpetuate an evil. 
While Congress could not regulate his conduct merely because 
he had imported the goods some time in the past, it can, if it 
judges discrimination an evil, prohibit, him from using the 
channels of interstate commerce to bring into the State the 
goods which are the tools of the discrimination. And where 
Congress can close the channels of commerce to those using out- 
of-State goods to pursue an injurious practice, it can also for­
bid using the goods in the practice itself. Compare United 
States v. Darby, 312 U.S. 100, 122. See, also, the analysis of 
Professor Paul A. Freund, S. Rep. 872, 88th Cong., 2d Sess., 
pp. 82-83.



39

establishment might result in a strike or other con­
certed activity that would curtail the interstate move­
ment of goods. See pp. 30-32 above.

The commercial problem has had nationwide scope 
and almost incredible proportions. The Attorney 
General testified before the Senate Judiciary Com­
mittee that between May 20 and July 31, 1963 (the 
date of his testimony) there were 639 demonstrations 
in 174 cities, 32 States, and the District of Columbia. 
Of these, 302 were concerned solely with discrimina­
tion in places of public accommodation.23 Assistant 
Attorney General Marshall wrote Senator Javits on 
April 14, 1964, furnishing later figures (110 Cong. 
Rec, 7980 (daily ed.)). From May 1963 to April 
1964, a total of 2,422 racial demonstrations took place, 
of which 850 arose from disputes about discrimina­
tion in places of public accommodation. The Mayor 
of Atlanta, Georgia, testified in favor of enactment 
that “ [fjailure by Congress to take definite action at 
this time * * * would start the same old round of 
squabbles and demonstrations that we have had in the 
past.” 24

The effect upon business conditions and, therefore, 
on interstate commerce is obvious. The most immedi­
ate impact upon restaurants and lunch counters which 
either refuse to serve Negroes or segregate their facil­

23 Hearings before the Committee on the Judiciary, United 
States Senate, 88th Cong., 1st Sess., on S. 1731, p. 216.

24 Report of the Committee on Commerce, United States Sen­
ate, on S. 1732, No. 872, 88th Cong., 2d Sess. (February 10, 
1961), at 15, 21, quoting Mayor Ivan Allen, Jr. This report- is 
hereafter cited as “Senate Commerce Report.”



40

ities has come in the form of sit-in demonstrations. 
The purpose and effect of a sit-in is, of course, to pre­
vent sales of food as completely as would a strike of 
the employees of the business. The ultimate result is 
to eliminate purchases of out-of-State food and sup­
plies. But sit-ins and their effects represent only the 
beginning of the forms of demonstration and the im­
pact on interstate commerce. Under Secretary of 
Commerce Roosevelt testified that “ [i]t is common 
knowledge that discrimination in public accommoda­
tions and demonstrations protesting such discrimina­
tion have had serious consequences for general busi­
ness conditions in numerous cities in recent years.” 
Hearings before the Committee on Commerce, United 
States. Senate, 88th Cong., 1st Sess., on S. 1732, Part 
2, Ser. 27-, at 699.25 The examples he describes are 
impressive.

Retail sales in Birmingham were reported off 30 
percent or more during the protest riots in the spring 
of 1963. Businessmen stated that there were more 
business failures than during the depression. Down­
town stores privately reported that their sales in April 
of that year were off 40 to 50 percent. They were hit 
first by a Negro boycott and then by a tense atmos­
phere that kept customers at home or in suburban 
shops. The Federal Reserve Bank showed depart­
ment store sales in Birmingham in the four-week 
period ending May 18, 1963, down 15 percent over the 
same period in 1962. During the same period, de­

25 These bearings are hereafter cited as “Senate Commerce 
Hearings.”.



41

partment store sales were up in Atlanta, New Orleans, 
and Jacksonville. Ibid.

Other cities suffered similar experiences. In  At­
lanta,. Mr. Roosevelt testified, “after several months 
of intermittent demonstrations in 1960-1961, and a 
boycott sparked by student groups to remove racial 
barriers in lunch counters and department store res­
taurants, merchants agreed that the Negro boycott of 
the downtown area was almost 100 percent effective.” 
Department store sales for a one-week period in 
February 1961 were down 12 percent from the pre­
ceding year, according to the Federal Reserve Bank. 
Senate Commerce Hearings, at 699-700. In Savan­
nah, lunch-counter discrimination in downtown stores 
finally ended following “a 15-month boycott of the 
stores by Negroes * * *.” This boycott “cut retail 
sales as much as 50 percent in some places.” In the 
fall of 1962 businessmen in Charlotte, North Carolina, 
“hit by drives for desegregation of publie accommoda­
tions, estimated their business was cut by 20 to 40 
percent.” In Nashville, Tennessee, a boycott was 
maintained for seven weeks at 98 percent efficiency 
.(Senate Commerce Hearings, at 700):

Negroes in Nashville spend an estimated $7 
million annually downtown and their absence 
had varying results. In one department store, 
they represented 12 to 15 percent of the busi­
ness ; in another department store, 5 percent. 
The transit company found its revenues dwin­
dling seriously ; the two newspapers found ad­
vertising lineage figures falling.

“Variety stores,” Mr. Roosevelt continued, “were 
hit particularly hard. With their lunch counters a



42

sit-in target, even those who did venture downtown 
avoided the food counters, which sometimes account 
for as much as 50 percent of the gross profit. Even 
businessmen not involved in the sit-ins and which had 
reputations of good service to Negroes found busi­
ness dropping.” Ibid.

I t  is evident that such a general downturn in retail 
business must, if left unchecked, result in serious dis­
ruption in the flow of goods across State lines. If  
retail stores cannot sell, they in turn will not buy 
from wholesalers, who in turn must necessarily re­
duce their out-of-State purchases. In a highly inter­
dependent economy, as Congressman McCulloch ob­
served, “a local disturbance can affect the commerce 
of an entire State, region, and the country.” 26 Or, 
as a “top retail executive” said, “ [t]his thing 
has frightening ramifications. I t  is more serious 
than people realize. I t  has now become an economic 
situation affecting an entire community, the whole 
city, and the whole country.” 27

Less obvious, but likewise important, is the impact 
of racial disputes and civil unrest upon the flow of 
investment. Congress was told of companies which 
had decided, because of such disputes, not to open 
plants and offices in Birmingham and Montgomery.28 
Congressman McCulloch, summarizing the evidence, 
stated: “The segregation of public accommodations

26 “Additional Views” of Congressmen McCulloch, Lindsay, 
and other Republican committee members, filed in support of 
the Report of the House Judiciary Committee, 88th Cong., 1st
Sess., No. 914, Part 2, on PI.R. 7152 (December 2, 1963) at 12..
This document is hereafter cited as “Additional Views.”



43

and other sources of racial unrest in Birmingham, 
Ala,, have induced many businesses to reconsider 
their plans to move into or to expand their existing 
operations in the area.” Additional Views, supra, 
at 12.

The story had been the same in Little Rock. As 
Under Secretary Roosevelt testified (Senate Com­
merce Hearings, at 699) :

In the 2 years before the crisis over schools 
and desegregation of public accommodations 
erupted into violence in Little Rock in Sep­
tember 1957, industrial investments totaled 
$248 million in Arkansas. During the period, 
Little Rock alone gained 10 new plants, worth 
$3.4 million, which added 1,072 jobs in the eity. 
In the 2 years after the turbulence which 
brought Federal troops to the city, not a single 
company employing more than 15 workers 
moved into the Little Rock area. Industrial 
investments in the State as a whole dropped to 
$190 million from $248 million of the 2 years 
before desegregation.

The Secretary of Labor drew this conclusion (Sen­
ate Commerce Hearings, at 623) :

Industry is discouraged from locating or ex­
panding in communities where equal oppor­
tunity does not exist and incidents have taken 
place or are likely to occur. Lack of equal

27 Report of the Legislative Reference Service, Library of 
Congress, to the Chairman of the Senate Commerce Committee, 
“An Episode Account of Economic Effect of Segregation and Re­
sistance to Segregation in the South,” Senate Commerce Hear­
ings, at 1384.

28 Id. at 1385.
74& - 011-— 64— -5



44

facilities for employees and even the latent 
possibility of demonstrations often removes the 
locality from consideration as a site for com­
mercial or industrial expansion. This affects 
industrial development regionally and nation­
ally by limiting the flexibility and free choice 
of business and hampering labor mobility.

2. Racial discrimination in restaurants serving food from out 
of State artificially restricts the market for goods moving 
in interstate commerce

The reduction in the business-—and therefore in 
the purchases of goods from other States—-of a res­
taurant which is involved in a racial dispute is not 
the only, or even the most direct, effect upon inter­
state commerce caused by racial discrimination. A 
second and still more direct link between discrimi­
nation and interstate commerce is the reduction in 
the number of potential customers caused by the dis­
couragement of Negro patronage—-which in turn re­
duces the quantity of goods purchased through inter­
state channels. As the Attorney General testified 
(,Senate Commerce Hearings, at 18-19) : “Discrimi­
nation by retail stores which deal in goods obtained 
through interstate commerce puts an artificial restric­
tion on the market and interferes with the natural 
flow of merchandise. ’ ’ See, also, testimony of Senator 
Magnuson, 110 Cong. Rec. 7174 (daily ed.).

I t  is clear that the aggregate effect of racial dis­
crimination by restaurants is substantially to restrict 
the market for food. Indeed, that is simply a tru­
ism. Not only do established businesses sell less but 
many new businesses are not opened, because of the 
narrowed market resulting from the exclusionary



45

practices. This restriction on the market, in turn, 
retards the flow of goods in interstate channels. To 
avoid that result Congress may go to the cause.

The testimony of Under Secretary Roosevelt is re­
vealing with respect to the effect of policies of racial 
exclusion in retail establishments, including restau­
rants, on the scope of the market for food and other 
products. His testimony was that Negroes spend 
less money per capita, after discounting income dif­
ferences, than do whites in restaurants, theaters, and 
the like, and that the disparity is especially aggra­
vated in the South where such exclusionary practices 
are widespread. He attributed this to racial discrim­
ination. Senate Commerce Hearings, at 695.

The Under Secretary illustrated the point by show­
ing that “Negroes in large northern cities spend 
more than southern Negroes of the same income 
class in all of these expenditure categories [i.e., res­
taurants, theaters, recreational facilities, hotels, 
motels] * '* *, even though white families in north­
ern cities spend less than similar families in south­
ern cities.” “In the same income group,” he said, 
“northern Negroes spend more than northern whites 
for [theaters and recreation], but southern Negroes 
spend less than southern whites and northern Ne­
groes. Negroes in both the North and South spend 
less on ‘Food eaten away from home’ than white peo­
ple in the same income groups, but the difference is 
much greater in the South.” Ibid.29

29 The statistics furnished Congress by the Commerce De­
partment are set out in Appendix B to Brief for the United 
States in Heart of Atlanta Motel, Inc. v. United States, No. 
515, p. 70.



46

The Secretary of Labor gave similar testimony. 
Senate Commerce Hearings, at 623, 624, 626, 630.

The district court, citing Tot v. United States, 319 
U.S. 463, 467-468, seems to suggest that to legislate 
upon the ground that there is a relationship between 
racial discrimination in places of public accommoda­
tion and interstate commerce is unconstitutional “be­
cause of lack of connection between the two in com­
mon experience” (R. 49). We submit, with due re­
spect, that the evidence before Congress shows that 
the court’s declaration flies in the face of established 
fact.

I t is obvious, of course, that the volume of goods 
purchased by any restaurant, viewed in isolation, has 
scant effect upon the total volume of goods moving 
in interstate commerce. Here, appellees were receiv­
ing annually about $70,000 worth of meat from out- 
of-State sources. But the size and volume of pur­
chases of the individual establishment are not conclu­
sive. Also “ [appropriate for judgment is the fact 
that the immediate situation is representative of many 
others throughout the country, the total incidence of 
which if left unchecked may well become far-reaching 
in its harm to commerce.” Labor Board v. Reliance 
Fuel Corp., 371 U.S. 224, 226. As the Court held in 
Wickard v. Filburn, 317 U.S. I l l ,  127-128:

That appellee’s own contribution to the de­
mand for wheat may be trivial by itself is not 
enough to remove him from the scope of federal 
regulation where, as here, his contribution, 
taken together with that of many others simi­
larly situated, is far from trivial.



47

To the same effect, see Polish National Alliance v. 
Labor Board, 322 U.S. 643; Labor Board v. Denver 
Bldg. & Const. Trades Council, 341 U.S. 675, 685, 
n. 14; Labor Board v. Fainblatt, 306 U.S. 601.

Congress was also entitled to judge the importance 
of the commercial relationship between racial dis­
crimination in restaurants and the interstate flow of 
goods in the light of the data showing that the ob­
structions were widespread, confined to no single city, 
State or even region, but part of a nationwide prob­
lem. Discriminatory practices in one restaurant in 
Birmingham are not unrelated to racial discrimina­
tion in other restaurants in Birmingham, and also in 
hotels, motels, theaters and other places of public 
entertainment. Discrimination in Birmingham and 
the resulting disturbances are not unrelated to racial 
discrimination in Chicago, Los Angeles and Yew 
York. While Congress was careful to cover only 
establishments where discrimination would have an 
individual link to interstate commerce through the 
receipt of out-of-State goods, it was entitled to judge 
the importance of that link in the light of its knowl­
edge that the discrimination and resulting threat of 
disturbances at any one establishment wrns part of a 
complex and interrelated pattern. Cf. Wickard v. 
Filburn, 317 U.S. 111.

I t is also immaterial whether a dispute had occur­
red or was imminent at appellees’ restaurant. In 
Consolidated Edison Co. v. Labor Board, 305 U.S. 
197, 222, the Court held—

But it cannot be maintained that the exertion
of federal power must await the disruption of



4 8

that commerce. Congress was entitled to pro­
vide reasonable preventive measures and that 
was the object of the National Labor Relations 
Act.

Similarly, in dealing with the threat to commerce 
arising from a practice of racial discrimination Con­
gress “ was entitled to provide reasonable preventive 
measures” ; that was the object of Title I I  of the Civil 
Rights Act.
3. The absence of an explicit recital that racial discrimination 

in  restaurants serving food from out-of-State sources burdens 
interstate commerce does not invalidate Title II
Appellees, if we may judge from their brief in the 

district court, do not challenge the basic constitutional 
principles upon which we rely; nor did they offer to 
prove that there was no evidence upon which one 
could reasonably conclude that the prohibition of 
racial discrimination in covered places of public ac­
commodation was adapted to eliminating a cause of 
obstructions to the free flow of goods in interstate 
commerce. Indeed, both they and the court below 
(R. 45-46) seem to agree that the Labor Board cases 
would be controlling if Congress had made a more 
explicit finding that, discrimination affects commerce 
comparable to the findings in the National Labor Re­
lations and Fair Labor Standards Acts, and if there 
were provision for ad hoc inquiry into whether the 
discrimination at a particular restaurant has that 
effect. From the absence of such provisions appellees 
and the court below leap to the conclusion that “ Con­
gress has sought to put an end to racial discrimination 
in all restaurants wherever situated regardless of



49

whether there is any demonstrable causal connection 
between the activity of the particular restaurant 
against which enforcement of the act is sought and 
interstate commerce” (R. 48).

The absence of formal declared findings neither 
warrants that conclusion nor invalidates the statute. 
Such recitals are contained in some statutes30 and 
omitted from others.31 Their presence may aid the 
Court in understanding the factual predicate of par­
ticular legislation but they are not essential. The 
Court has often sustained statutes regulating activi­
ties affecting commerce even though there was no 
express legislative declaration. See, e.g., Southern 
Ry. Go. v. United, States, 222'U.S’. 20; Baltimore & 
Ohio R. Co. v. Interstate Commerce Commission, 221 
U.S. 612; United States v. Ferger, 250 U.S. 199; Vir­
ginian Ry. v. System Federation No. 40, 300 U.S. 
515; United States v. Sullivan, 332 U.S. 689; Federal 
Trade Commission v. Mandel Bros., 359 U.S. 385, 
391.32

30 See, e.g., Securities Exchange Act, of 1934, 15 U.S.C. 78b; 
Trust, Indenture Act of 1939, 15 U.S.C. 77bbb; National Labor 
Relations Act, 29 U.S.C. 141; Fair Labor Standards Act, 29 
U.S.C. 201.

31 See, e.g., Railway Labor Act, 45 U.S.C. 151; Safety Appli­
ance Acts, 45 U.S.C. 8, 49 U.S.C. 26; Bill of Lading Act, 49 
U.S.C. 121; Fur Products Labelling Act, 15 U.S.C. 69; Auto­
mobile Information Disclosure Act, 15 U.S.C. 1231; Textile 
Fiber Products Identification Act, 15 U.S.C. 70.

32 The passage concerning the necessity of findings quoted 
by the district court from Mr. Justice Black’s concurring 
opinion in Polish National Alliance v. Labor Board, 322 U.S. 
643, 651-653, is taken out of context. He was addressing him­
self to the substantive posture in which the case was put by 
the action of the Labor Board, and speaking of administrative



50

The fatal error in appellees’ argument is that it 
reverses the normal presumption of constitutionality 
and asks the Court to assume, because of the absence 
of formal recitals, (i) that Congress ignored the com­
mercial consequences of racial discrimination that 
would support the legislation and (ii) that Congress 
proceeded exclusively upon another ground. To at­
tribute to Congress an improper theory where there 
are ample constitutional grounds for its action is con­
trary to settled principles of constitutional adjudi­
cation. The Court has repeatedly held, “A decent re­
spect for a co-ordinate branch of the government de­
mands that the judiciary should presume, until the con­
trary is clearly shown, that there is no transgression of 
power by Congress—all the members of which act 
under an oath of fidelity to the Constitution * * *. I t 
is incumbent, therefore, upon those who affirm the un­
constitutionality of an act of Congress to show clearly 
that it is in violation of the provisions of the Constitu­
tion,” Legal Tender Gases, 12 Wall. 457, 531. “Every 
presumption is to be indulged in favor of faithful 
compliance by Congress with the mandates of the 
fundamental law * * *. When such a contention 
comes here we naturally require a showing that by no 
reasonable possibility can the challenged legislation 
fall within the wide range of discretion permitted to

findings. The Court has frequently required explicit findings 
by an administrative agency before sanctioning its regulation 
of activities that would be within the scope of State power but 
for the agency’s intervention. E.g., Florida v. United States, 
-282 U.S. 194, 211-212; City of Yonkers v. United States, 320 
XJ.S. 685. These were the principal cases cited by Justice 
Black.



51

the Congress.” United States v. Butler, 297 U.S. 1, 
67. See, also, Sinking Fund Cases, 99 U.S. 700, 718; 
United States v. Harris, 106 U.S. 629, 635.33

One well-settled corollary is that neither proof nor 
legislative findings are required where the constitu­
tionality of legislation turns upon whether conditions 
exist which might lead the legislative body to conclude 
that the challenged measure was a means reasonably 
adapted to a permissible objective. The Court dealt 
with the point explicitly in United States v. Carotene 
Products Co., 304 U.S. 144,152:

Even in the absence of such aids the existence 
of facts supporting the legislative judgment is 
to be presumed, for regulatory legislation af­
fecting ordinary commercial transactions is not

33 A similar presumption applies where the constitutionality 
of a State statute regulating business activities is challenged. 
See Metropolitan Casualty Insurance Go. v. Brownell, 294 U.S. 
580, 584, and cases there cited at note 1; South Carolina High­
way Department v. Barnwell Brothers, 303 U.S. 177, 191—192, 
where it was said: “Being a legislative judgment it is presumed 
to be supported by facts known to the legislature unless facts 
judicially known or proved preclude that possibility. Hence, 
in reviewing the present determination we examine the record, 
not to see whether the findings of the court below are sup­
ported by evidence, but to ascertain upon the whole record 
whether it is possible to say that the legislative choice is with­
out rational basis.” See, also, Clark v. Paul Gray, Inc., 306 
U.S. 583, 594; McGowan v. Maryland, 366 U.S. 420, 426.

The presumption probably does not apply to “legislation 
which restricts those political processes which can ordinarily 
be expected to bring about repeal of undesirable legislation.” 
United States v. Carotene Products Co., 304 U.S. 144, 152, n.
4. Nor are we dealing here with a situation in which “legis­
lation appears on its face to be within a specific prohibition of 
the Constitution * * Ibid.



52

to be pronounced unconstitutional unless in the 
light of the facts made known or generally 
assumed it is of such a character as to preclude 
the assumption that it rests upon some rational 
basis within the knowledge and experience of 
the legislators.

Compare Townsend v. Yeomans, 301 tl.S. 441, 451-452.
In  the present case evidence was presented to Con­

gress showing that racial discrimination in places of 
public accommodation created a commercial problem 
of national magnitude. See pp. 38-44, above. Ex­
cept where it was dealing with discrimination sup­
ported by State action in violation of the Constitution 
(Section 201 (a) and (d)), Congress prohibited dis­
crimination only in those establishments which have 
a close and intimate tie to interstate commerce—in 
the case of restaurants, through serving food which 
comes from out of State. The natural conclusion is 
that Congress decided that discrimination in the es­
tablishments thus linked to commerce so burdened and 
obstructed that commerce as to require the legislation. 
We think that Section 201(b) amounts to a declared 
finding of that fact, but even if it does not, plainly 
appellees have failed to make the required showing 
“that by no reasonable possibility can the challenged 
legislation fall within the wide range of discretion 
permitted to the Congress” (United States v. Butler, 
supra).

Appellees ’ argument also fails upon a second, settled 
point of constitutional adjudication. Where legisla­
tion is  clearly appropriate to the exercise of a granted 
power, the courts may not investigate the legislature’s



53

reasoning with a view to attributing to Congress an 
impermissible objective and thereby invalidating the 
legislation. Veazie Bank v. Fenno, 8 Wall. 533, 546; 
McCray v. United States, 195 U.S. 27, 54-55; Hamil­
ton v. Kentucky Distilleries Co., 251 U. S. 146, 160- 
163; Arizona v. California, 283 IT.S. 423, 454-457/1 
Where an Act of Congress is seen to be reasonably 
adapted to an objective within the' delegated powers 
of Congress—here the protection of interstate com­
merce—and it offends no express limitation, the judi­
cial function is exhausted. McCulloch v. Maryland, 
4 Wheat. 316, 420.
Jh Title II is not invalidated by the absence of provision for 

an administrative or judicial finding whether discrimination 
in an individual restaurant affects interstate commerce, be­
fore bringing it within the coverage of th-e Act

In the district court appellees also argued that 
Title I I  could not be sustained as a regulation of local 
activities affecting interstate commerce because the 
statute does not provide for an individual ad hoc 
decision, by a court or administrative agency, as to 
whether racial discrimination in the particular estab­
lishment will affect interstate commerce. The argu­
ment has no support in the authorities and is incon­
sistent with the implicit holding of a long line of 
decisions. I t  is also unsound in principle. 34

34 This is not to say that a statute which is obviously designed 
to reach a forbidden objective is saved because another merely 
colorable purpose is cited in justification. Nor is the usual 
“insulation” from judicial review “carried over when state 
power is used as a n . instrument for circumventing a federally 
protected right,” Gomillion v. Light foot, 364 U.S. 839, 347.



Section 201 prohibits racial discrimination in any 
restaurant where a substantial portion of the food 
served comes from another State. In enacting the 
prohibition Congress determined for itself that racial 
discrimination in such an establishment, when viewed 
as one of many similar enterprises, does, in fact, 
create such a danger of obstructing interstate com­
merce as to warrant protective legislation. With that 
fact—that part of the link between discrimination 
and commerce established—there remains only the 
question whether a particular restaurant receives 
goods from out of State. The latter issue is subject 
to judicial determination in every case.

There is no constitutional requirement that the rela­
tion between interstate commerce and a particular 
practice like racial discrimination be left to ad hoc 
litigation in each particular case. In  United States v. 
Darby, 312 U.S. 100, 120-121, the Court noted the 
variations in legislative practice and approved a legis­
lative determination of the relation:

In such legislation [i.e. legislation regulating 
activities intrastate] Congress has sometimes 
left it to the courts to determine whether the 
intrastate activities have the prohibited effect 
on the commerce, as in the Sherman Act. I t 
has sometimes left it to an administrative board 
or agency to determine whether the activities 
sought to be regulated or prohibited have such 
effect, as in the case of the Interstate Com­
merce Act, and the National Labor Relations 
Act, or whether they come within the statutory 
definition of the prohibited Act, as in the Fed­
eral Trade Commission Act. And sometimes

54



55

Congress itself lias said that a particular ac­
tivity affects the commerce, as it did in the 
present Act, the Safety Appliance Act and the 
Railway Labor Act. In passing on the validity 
of legislation of the class last mentioned the 
only function of courts is to determine whether 
the particular activity regulated or prohibited 
is within the reach of the federal power. See 
United States v. Ferger, supra; Virginian By. 
Go. v. Federation, 300 U.S. 515, 553.

There was no provision for trial of the question 
whether the lack of a safety appliance upon a par­
ticular piece of rolling stock used in intrastate com­
merce endangered interstate commerce, Southern By. 
Go. v. United States, 222 U.S. 20; of whether the 
hours of labor of back shop employees would interfere 
with the operation of interstate trains, Baltimore & 
Ohio B. Go. v. Interstate Commerce Commission, 221 
U.S. 612; of whether the issuance of a particular forged 
bill of lading interfered with commerce, United States 
v. Ferger, 250 U.S. 199; or of whether the growing of 
wheat in excess of the allotment to Filbum’s farm 
would disrupt interstate markets, Wichard v. Fil- 
burn, 317 U.S. 111.

Contrary to the opinion below (R. 46), the course 
followed in Section 201 of the Civil Rights Act of 
1964 closely parallels the scheme of Sections 6, 7, and 
15(a) (2) of the Fair Labor Standards Act. The con­
stitutionality of the latter rests upon the ground that 
the payment of! substandard wages to employees en­
gaged in the production of goods for commerce, while



56

not itself commerce, nevertheless so obstructs and 
burdens commerce as to be subject to federal regula­
tion. United States v. Darby, 312 U.S. 100, 117-121. 
That issue was resolved by Congress. The sole ques­
tion left for judicial determination was whether the 
particular goods were produced for commerce. In  
the present instance Congress itself has said that dis­
crimination in a restaurant which, directly or indi­
rectly, receives goods in commerce, threatens to ob­
struct or burden that commerce. The only question 
left for judicial determination is whether the particu­
lar restaurant receives goods in commerce. The 
parallel is complete, and the holding in United States 
v. Darby is therefore precisely applicable to the pres­
ent case,35

Indeed, appellees’ effort to distinguish the National 
Labor Relations Act rests upon a misunderstanding of 
the operation of that statute. Although the Act em­
powers the Board to prevent unfair labor practices 
and resolve questions of representation affecting com­
merce and provision is made for administrative hear­
ing, the Board’s inquiry upon this point never goes 
beyond the relationship between the employer’s busi­
ness and interstate commerce, such as the shipment or 
receipt of interstate goods. The Board has never 
made ease-by-case inquiries into whether diserimina- 
tion against union members or other unfair labor prae-

35 The very argument made by appellees here was presented 
in United States V. Darby, and rejected by the Court in the por­
tion of the opinion quoted above. See Brief for Appellee, No. 
82, October Term 1940, pp. 76-77.



57

tices in the particular shop might give rise to a labor 
dispute which might curtail shipments or orders and 
so affect interstate commerce. Were an employer to 
tender proof upon the issue, it would be excluded. 
Just two terms ago this Court reversed a holding of 
the Second Circuit setting aside a decision of the 
Board for lack of “findings on the manner in which a 
labor dispute at Reliance affects or tends to affect 
commerce.” This Court held that findings as to the 
quantity of out-off State oil purchased by Reliance 
from local wholesalers were alone sufficient. Labor 
Board v. Reliance Fuel Co., 371 II.S. 224: see, also, 
Labor Board V. Bradford Dyeing Assn., 310 U.S. 318, 
326; Labor Board v. Phoenix Mutual Life Insurance 
Co., 167 F. 2d 983, 985 (C.A. 7), certiorari denied, 335 
IBS, 845. The adequacy of such findings is also ap­
parent both from the Board’s consistent practice and 
from the lead cases and press releases announcing 
yardsticks for the exercise of jurisdiction, See Sie- 
mons Mailing Service, 122 N.L.R.B. 81; Sioux 
Valley Empire Electric Assn., 122 N.L.R.B. 92. 
Evidently the Board feels that Congress itself found 
that unfair labor practices in businesses closely related 
to commerce have a tendency to obstruct it, leaving 
open only the existence of a link between the partic­
ular business and interstate commerce. I f  so, the 
situation under the National Labor Relations Act is 
indistinguishable from Title II. I f  the general rule is 
Board-made, the power of Congress is certainly not 
less. ■ r — y. ■' P; , ;



58

CONCLUSION

Although we contend that Congress has, and has ex­
ercised, the power to prohibit racial discrimination in 
places of public accommodation (as defined in Title 
I I ) , because the discrimination is a prolific source 
of burdens and obstructions to interstate commerce, 
we do not suggest that Congress was uninfluenced by 
the conviction that racial discrimination in public 
places is a grave moral wrong, lying heavy on the con­
science of the entire Nation, which belies the ideals of 
America. Paced with the need for meeting the com­
mercial problem, Congress was free to choose the 
remedy adapted to that end which it believed would be 
most effective, most conducive to the public welfare, 
and most consistent with the promise of America to all 
sorts and conditions of men.

Similarly, it is irrelevant whether racial discrimina­
tion in restaurants be called a commercial practice or 
a social custom. I f  a social custom is carried over into 
business enterprises, which are subject to legislative 
regulation, and there becomes a source of burdens or 
obstructions to interstate commerce, Congress has the 
same power to prohibit the practice, as a means of 
protecting commerce, as it would have if the practice 
were in commerce itself. And the power to prohibit 
racial discrimination in commerce is too plain for 
argument. Mitchell v. United States, 313 U.S. 80, 94; 
Henderson v. United States, 339 U.S. 816; Boynton 
v, Virginia, 364 U.S. 454.

The power of Congress under the commerce clause 
and “necessary and proper” clause is broad and



59

sweeping. I t  may be argued that such power is 
subject to abuse. Tbe answer to such arguments, 
when Congress keeps within:. its sphere, and violates 
no express constitutional limitation, was voiced by 
Chief Justice Marshall one hundred and forty years 
ago in Gibbons v. Ogden, 9 Wheat. 1, 197:

The wisdom and the discretion of the congress, 
their identity with the people, and the influ­
ence which their constituents possess at elec­
tions, are, in this, as in many other instances, 
as that, for example, of declaring war, the sole 
restraints on which they have relied to secure 
them from its abuse. They are the restraints 
on which the people must often rely solely, in 
all representative governments.

Here, then, as on most other aspects of the case, 
the governing principles go back almost to the found­
ing of the Republic.

The Civil Rights Act of 1964. was debated longer, 
more widely and more conscientiously than any legis­
lation in recent decades. Title II is plainly appro­
priate to resolving what was, in a major aspect, a 
national commercial problem within the reach of 
Congress under the power to regulate interstate com­
merce. Title II violates no express limitations such 
as are contained in the Bill of Rights. Ho other 
issue remains.88

The judgment below should therefore be reversed, 
both because the court below had no equity jurisdie-

36 The questions raised below by appellees under the First, 
F ifth  and Thirteenth Amendments appear to require no answer 
beyond our brief in Heart of Atlanta Motel, Inc. v. United 
States, Ho, .515, This Term.



60

tion and because Title II, as applied to appellees* 
restaurant, is constitutional.

Respectfully submitted.
A rchibald Cox,

Solicitor General. 
B urke M arshall,

Assistant Attorney General. 
R alph  S. Spritzer,
P h il ip  B . H eymann , 

Assistants to the Solicitor General.

October 1964.

H arold Greene,
Alan  G. M arer,
Gerald P . Ch o ppin ,

Attorneys.

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