We support also the proposals to extend the duties of the Commission to serve as a clearinghouse for information and technical assistance to governmental agencies and to private organizations.

It would be disastrous if the Commission were allowed to expire. It would be shameful if its mandate were extended for only a limited time. The ACLU urges that the Commission be made a permanent agency.

Thank you.

Senator ERVIN. Do you consider that all of the recommendations of the Commission have been mature?

Mr. PEMBERTON. I think they have been very mature recommendations.

This does not require, I think, the Senate to agree with the recommendations that have been made.

Senator ERVIN. Well, can you personally approve of the recommendation the Commission made with respect to cutting off all Federal grants to the State of Mississippi until the State officials of Mississippi change their ways and conform to the ideals of the Commission?

Mr. PEMBERTON. I would suggest this is a mature proposal, not necessarily that it merits your agreement or mine.

The Commission asked the President in that particular recommendation to consider seriously whether legislation is appropriate to assure that Federal funds are not made available to any State which continues to refuse to abide by the Constitution and that the President explore the legal authority he possesses to withhold Federal funds. Senator ERVIN. Do you not think that recommendation shows the conviction of the Commission that Federal grants to Mississippi should be cut off?

Mr. PEMBERTON. It shows the conviction of the Commission that Federal funds ought not to be used to perpetuate this discrimination. Senator ERVIN. It showed specifically that the Commission was of the opinion that Federal funds should be cut off from the State of Mississippi until the officials of the State of Mississippi change their ways, to conform to the ideas of the Commission.

Mr. PEMBERTON. I have to confess, Mr. Chairman, that I have no insight as to what the Commission thought other than what they said, and I think they said they were very much concerned about this problem.

Senator ERVIN. Didn't they say in effect, that if Federal funds were granted to Mississippi that the other States were being compelled to subsidize the subversion of the Constitution by Mississippi officials?

Mr. PEMBERTON. They did say that, yes.

Senator ERVIN. Now, let me call your attention to some other points. Mr. PEMBERTON. This is certainly true where Federal funds are employed to expand discrimination."

Senator ERVIN. Does not the Constitution of the United States say that all the legislative power of the Federal Government is vested in the Congress?

Mr. PEMBERTON. Mr. Chairman, I answer that question "Yes," without claiming to be a constitutional lawyer. I am a general practitioner.

Senator ERVIN. Well, I would say that you are a good constitutional lawyer also.

Now, would not an act of Congress which makes Federal grants and specifies the terms and conditions on which those grants shall be given, would not the cutting off of grants

Mr. PEMBERTON (interposing). Yes; but I think it is to be assumed that the acts of Congress are within the meaning of the Constitution and would not intend the use of Federal funds to perpetuate patterns of discrimination.

Senator ERVIN. But does not the Constitution itself contemplate that the power to make decisions condemning people and imposing punishment upon people shall be done by the judiciary rather than the executive?

Mr. PEMBERTON. I think this is a separate question. I do not think the Commission said that they were determining that the punishment, that the time for punishment was ripe, or that punishment had been merited.

They said the Congress and President should consider seriously whether legislation is appropriate.

Senator ERVIN. It does not condemn the people of Mississippi and say, in effect, that they should not be allowed to have a project in Mississippi for a proposed trip to the moon?

Mr. PEMBERTON. Let me refer to the example the Commission used, that the Federal Aviation Agency failed to take cognizance of its obligation to the overriding constitutional demands when it granted $2.5 million for the construction of an airport without questioning the airport's plan to build separate eating facilities.

This is directed to the use of Federal funds to perpetuate patterns of discrimination.

Senator ERVIN. Do you have the report which deplores the fact that any money is going from the Federal Government to the citizens of the State of Mississippi; where it refers specifically to officials ignoring the Constitution, and deplores the creation of an installation to be used in an attempt to travel to the moon?

Mr. PEMBERTON. There is a reference to the $400 million rocket test engine following the statement:

Massive assistance to the economy of Mississippi has continued past the time when the State placed itself in direct defiance of the Constitution and Federal court orders.

Senator ERVIN. In other words, is not the Commission intimating that the Federal Government ought not to build a plant there because some of that money might wind up in the pockets of Mississippi? Mr. PEMBERTON. If the application of it would tend to perpetuate patterns of discrimination, I would think yes. The method of employment

Senator ERVIN. It says:

Massive assistance to the economy of Mississippi has continued past the time when the State placed itself in direct defiance of the Constitution and Federal court orders.

For example, the National Aeronautics and Space Agency is proceeding with the plans to build a $400 million moon rocket test center in Pearl River and Hancock Counties, Miss.

Mr. PEMBERTON. It seems to me the Commission expresses a legitimate concern that such massive assistance will enlarge the discriminatory patterns of employment on Federal projects.

Senator ERVIN. Putting that in plain English, the Commission expresses the opinion that the Federal Government ought not to do anything which would contribute to the economy of Mississippi until Mississippi changes its ways and conducts itself as the Civil Rghts Commission thinks it ought to.

Mr. PEMBERTON. I think the Chairman is entitled to place that interpretation on it. It is not my interpretation. I might be wrong. I also have no other insight into what the Commission had in mind and what they said.

I think the Commission is legitimately concerned about the tendency of this project to increase discrimination in employment, in job opportunities, in sharing the benefits.

Senator ERVIN. And it advocates that the Federal Government not provide job opportunities in Mississippi until Mississippi conforms itself to the thoughts of the Commission. It that not true?

Mr. PEMBERTON. This interpretation has been placed upon it by many others who are critical of this provision and I again do not think it is necessary for the Senate to agree with this recommendation. Senator ERVIN. But do you not think the recommendation is susceptible of that interpretation?

Mr. PEMBERTON. Others have so interpreted it, and I do not think I would deny that one bit.

I think it is a mature recommendation because it deals with a major problem of the use of Federal funds to subvert the Constitution.

Senator ERVIN. I invite your attention to the first sentence on the top of page 5.

The financial benefits accruing to Mississippi and its citizens as a result of Federal programs are necessarily financed by American citizens throughout the Nation. The Commission deems it appropriate and desirable that the legislative and executive branches of the Federal Government inquire into the moral and legal considerations arising out of the situation where, in large measure, the lawless conduct and defiance of the Constitution by certain elements in one State are being subsidized by other States.

Do you not agree with me that those statements can be construed to mean that the Commission looks with disfavor upon the citizens of Mississippi receiving any benefits through Federal expenditures until the Government of Mississippi changes its ways?

Mr. PEMBERTON. I think, Mr. Chairman, I have already expressed my agreement with you that this is susceptible to that interpretation and I have chosen to suggest that it is also susceptible to the interpretation that the Commission is expressing deep concern about the use of Federal funds in areas not merely-in areas in which Mississippi is a prime example, but which occur elsewhere, where the effect of the employment of Federal funds, as in the airport example, is to perpetuate patterns of discrimination in violation of the 14th amendment.

Senator ERVIN. It does not exactly say that. It says "all funds should be withheld."

The intimation is that all funds from the Federal Government, and it even sets out the amount of $650 million I believe, should be withheld until Mississippi officials, in the words of the Commission, "cease to subvert the Constitution.”

Mr. PEMBERTON. I think I have already agreed with the chairman. He may place that interpretation on it.

Senator ERVIN. You realize that under this interpretation, which I give to the report and which you say is a possible interpretation, that the Commission was recommending that all grants to colleges of agriculture and mechanical arts, all grants for library services, all grants for vocational education, all payments to impacted school districts, all assistance for school construction, all grants for education of mentally retarded and all grants for defense education activities in Mississippi should be withheld until Mississippi reformed to suit the Commission.

Mr. PEMBERTON. I suspect it is probably true, Mr. Chairman, that each of the examples you have just recited involve employment of these funds in segregated institutions and I call the chairman's attention to the last paragraph of the Commission's statement or report in which it says:

The Commission does not want the people of Mississippi, either Negro or white, to lose benefits available to citizens of other States. Rather, its goal is that all citizens of the United States be assured the full enjoyment of the rights guaranteed by the Constitution.

It seems to me that the method in which Federal funds are employed might well be explored in terms of their capacity to attain this goal.

Senator ERVIN. And I invite your attention to page 1 where the Commission also says that:

Even children at the brink of starvation have been deprived of assistance by the callous and discriminatory acts of Mississippi officials administering Federal funds.

Does it not say that?

Mr. PEMBERTON. Yes, sir.

Senator ERVIN. And then, after saying that, it does not tell some of those children on the brink of starvation what to do. It proceeds to recommend that they cut off all of the aid to families with dependent children, all aid to the blind, all aid to the permanently and totally disabled, all aid granted for maternity and child welfare services, services to crippled children, and all child welfare services.

Mr. PEMBERTON. Mr. Chairman, you would agree that the employment of that aid to discriminate against Negro children would violate the 14th amendment and is it not tenable that the Commission found that only by employment of the threat of the power to withhold, that the President had an opportunity to deal with that evil?

Senator ERVIN. That is not exactly what the Commission says. I do not think any person can read this document and construe it from the four corners, as we lawyers say, without coming to the conclusion that the Commission was recommending that the President cut off all Federal aid to Mississippi for any purpose whatever.

Mr. PEMBERTON. Well, I very respectfully disagree with the chairman and suggest that the Commission's recommendations should be read literally as they appear on page 3, Nos. 1, 2, and 3.

We are discussing only No. 3.

Senator KEATING. I want to be recorded as in disagreement with the chairman, as one who can read this in a way which would not reach the conclusion the chairman has indicated.

It seems to me very clearly said here that the Congress should see what it can do to remedy the situation and then the President to explore the legal authority he already possesses to withhold Federal

funds and if in this program or that program or the next program he has the power to do it, he should exercise it.

It simply calls upon him to explore it and I say "Amen" to the proposition that both the legislative and executive branches of the Federal Government should inquire into the moral and legal considerations arising out of the situation where, in large measure, the lawless conduct of defiance of the Constitution by certain elements of one State are being subsidized by the other States.

I think it is better to say by the citizens of the other States, but I want to be recorded as one who disagrees with the interpretation which the Senator, our distinguished chairman, has put on the report.

I must say that that interpretation has been repeated over and over and over to the point where I congratulate the Senator from North Carolina and colleagues similarly situated, they have been able to convince some rather liberal journals that this is the interpretation on this document and which, in my judgment, is completely unjustified and some of the comments that have appeared in the press as a result of this reiteration of what I believe is a fallacious reasoning, has utterly amazed me.

I just do not see how they have been able to swallow such a fallacious line of reasoning. However, again I say the Senator has been very successful in this respect as he has in many others. But I certainly would not want to sit here and say that I agreed to any such interpretation of this document.

Senator ERVIN. I disagree with my good friend from New York. But I would be delighted to receive enlightenment from him, and I would appreciate it if he will point out anything in this statement that makes any distinction between Federal aid for one purpose and for others.

Senator KEATING. They have not gone into the details of every Federal aid program, but that is the only way I believe it is reasonable to read the statements they have made.

Mr. PEMBERTON. If it would be any assurance to the chairman, although I said I did not want to make this issue of the extension of the life of the Commission and of its responsibilities dependent upon our agreement with each of its proposals, I would certainly assure the chairman that I would disassociate myself at least from any proposal that any State be punished by nonjudicial action or all of the people of the State be punished by nonjudicial action by the act of one administration or one set of officials.

Senator ERVIN. Do you think that the President has the power to step in and cut off the appropriation made by Congress when Congress has proscribed the conditions upon which the appropriation has been made? Do you think he can add different specifications from those added by Congress?

Mr. PEMBERTON. Again, I would disassociate myself from the role of constitutional lawyer and associate myself with the recommendation of the Commission that the President ought to explore his power to do that sort of thing.

Senator ERVIN. I am glad my good friend from New York has said that other people have also put a different interpretation on this report.