Senator ERVIN. Well, Mr. Attorney General, I will have to submit again, with all due deference, that you have not answered the question. I asked you if that third sentence which I have just read to you, does not attempt to delegate to the President the power to say whether or not there are going to be any regulations at all in the first place and the power to determine who is going to be covered by those regulations and the power to say what constitutes an offense under those regulations and what punishment is going to be inflicted for the violation of them. It leaves it to the President, does it not?

Attorney General KENNEDY. But, Senator, I did answer the question. It is left to the President, but with the added proviso that any contractor will know about that beforehand and all of these matters are subject to review by the courts.

Now, when you are talking about punishment, it would all be reviewed by the courts.

Senator ERVIN. Do you see anything in title VII which says anything about a court review?

Attorney General KENNEDY. It is a breach of contract, Senator. Senator ERVIN. No; it is not a question of breach of contract. It is a question of what the punishment is to be. The punishment can be fixed by the President or the Commission.

Attorney General KENNEDY. That is based on a violation of the contract. Therefore, that would be the kind of punishment you would anticipate. It would be a question of specific performance or some kind of damages. Those matters would all be reviewed by the courts. Senator ERVIN. I would like to ask you this question in respect to this third sentence of section 701 of title VII. How do you reconcile the provision saying the Commission will have such powers to effectuate the purposes of this title as may be conferred upon it by the President with the decisions of the Supreme Court which say it is an unconstitutional delegation of legislative authority for Congress to delegate to the President or anyone else the power to determine whether or not a law will or will not be made, or the power to determine who is to be covered and who is not to be covered by the law, and the power to determine what acts shall constitute violations of the law, and the power to determine what the punishment for violation shall be?

Attorney General KENNEDY. Well, I would say first, Senator, the purpose of this bill-it is quite clear-is to give statutory authority to the Committee, the President's Committee, that already exists. That is the first point.

And you would not be granting to the President any new powers, any powers that he does not already have and exercise under Executive order.

No. 2, what would be involved here would not just be the violation of a rule or regulation issued by the President. It would be a violation of a contractual provision which the contractor had signed. Then if the contractor felt that the action by the Federal Government thereafter was unfair or unwarranted, that matter would ultimately be decided by the courts.

Senator ERVIN. The terms of the contract are to be specified by the President and not defined by the Congress. I respectfully submit that you have not quite answered my question. To say that the Presi

dent has issued some directives without congressional authority does not answer this question.

Attorney General KENNEDY. Senator, I have answered the question and you have asked it half a dozen times. I have answered it. What is involved here would be a contractual violation which would be subject to review by the courts. But you will not accept that.

Senator ERVIN. It does not say that. It says the Commission shall have such powers to effecutuate the purposes of this title as may be conferred upon it by the President. That is relating to the powers of the Commission, not to the contractors.

Attorney General KENNEDY. Right. Then they make a contract, or the Government makes a contract and writes in any of these provisions. The contract can only be terminated, or you can take any of these other actions only after there is a violation of that contract to which the contractor has agreed.

Senator ERVIN. That is not what this says. This says that the Commission is to have such powers as the President may give it. Attorney General KENNEDY. That is correct.

Senator ERVIN. Powers are not something derived from a contract. Powers are something derived from law.

Attorney General KENNEDY. They make contracts, Senator. They issue rules and regulations in connection with the contract. The contract is made in accordance with rules and regulations and the contractor makes the decision whether he in fact wants to sign such a contract. Then if he signs the contract and violates the contract, that will be litigated in the courts. That is not any new principle.

Senator ERVIN. I will not cavil any further with you over it. This provision has no relation to contracts. It has relation solely to powers of the Commission. In my honest judgment, it cannot possibly be reconciled with decisions saying that the Congress cannot delegate its powers to legislate to the President or anybody else.

Do you agree with me on the proposition that where Congress passes a new act, such new act repeals all inconsistent provisions of other acts unless Congress specifies to the contrary?

Attorney General KENNEDY. Yes.

Senator ERVIN. All right. I invite your attention to the fourth sentence of section 701 of title VII, lines 5, 6, 7, and 8 on page 36 of the bill:

The President may also confer upon the Commission such powers as he deems appropriate to prevent discrimination on the ground of race, color, religion, or national origin in Government employment.

My question is this: "Is that not susceptible of the interpretation that the President can even set aside or modify or nullify the civil service laws if he deems it appropriate to prevent discrimination on the ground of race, color, religion, or national origin in Government employment?"

Attorney General KENNEDY. No; I do not think he could.

Senator ERVIN. Can you point out anything in the bill which would render that construction inapplicable?

Attorney General KENNEDY. Again, I think you have to look at what the purpose of the bill is and what we are trying to accomplish

and I think it is quite clear that the bill does not provide for that. That would not be covered. I think it is quite clear.

Senator ERVIN. Well, Mr. Attorney General, you and I disagree very emphatically. I think the only thing one can consider to determine the purpose of the bill is the language of the bill. The fourth sentence gives the President complete power to take any action he deems appropriate to prevent discrimination in Government employment, and under that language, I contend that it would empower the President to modify or nullify civil service laws which might be inconsistent with his determination as to what is necessary to prevent discrimination.

Attorney General KENNEDY. Senator, do you contend that when a court is making a review of a piece of legislation as to what the intent is, they look only at the language of the bill?

Senator ERVIN. They look only at the language of the bill if the language of the bill is plain. If the language of the bill is plain, as this language is, the court will look no further.

Attorney General KENNEDY. Senator, is it your contention that they will look at only the language of the bill? Is it not correct that they will look at what

Senator ERVIN. They will look at the language of the bill only if the language is clear and unambiguous.

Attorney General KENNEDY. I think it is clear and unambiguous. But I think that anybody who looks at the language of this bill and has any question about it whatsoever the kind of question you raise, which I contend has no support-would then look at my statements, at the President's statement when he sent this bill up, at the discussion on the floor. All of these matters would be taken into consideration. I think it is quite clear, therefore, that a housewife is not covered as a contractor and the Civil Service Commission's regulations are not going to be overruled. It is going way out into leftfield, someplace, Senator, to try to discredit the bill.

Senator KEATING. Rightfield.

Senator ERVIN. The purpose of this part of the bill is plainly stated: "The Commission shall have such powers."

That is so plain, so unambiguous, that no court in the world in construing it could justify looking outside of it.

I am sorry, Mr. Attorney General, that I have detained you as long as I have. I think that in fighting this bill, I am fighting to preserve constitutional government in the United States and to preserve the basic economic, legal, personal, and property rights of all Americans. Attorney General KENNEDY. I will be back on Monday?

Senator JOHNSTON. We do not know when. I will have to adjourn subject to the call of the Chair.

(Whereupon, at 12:10 p.m., the committee adjourned, subject to the call of the Chair.)

CIVIL RIGHTS LEGISLATION

WEDNESDAY, SEPTEMBER 11, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to notice, at 10:45 a.m., in room G308, New Senate Office Building, Senator James O. Eastland (the chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Hart, Long (Missouri), Burdick, Dirksen, Keating, and Fong.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. Let's have order.

Senator Ervin, proceed.

i

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Senator ERVIN. Mr. Chairman, I would like to insert in the record a clipping from the Washington Star of September 7, 1963, which relates to a point already covered. This clipping shows that a supreme court justice of the State of New York has held the racially imbalanced school theory illegal in the State of New York for denying a child the right to attend a particular school on account of its race. (The clipping referred to follows:)

[From the Washington Star, Sept. 7, 1963]

SCHOOL RACIAL BALANCE PLAN UPSET BY COURT

NEW YORK, September 7.-A board of education plan to achieve racial balance in a new school by zoning it so that white persons, Negroes, and Puerto Ricans would be in equal numbers has been upset by a court.

White parents, who wanted their children to continue in neighborhood schools, had said the plan amounted to discrimination against whites.

Observers noted that the ruling held out hope of legal redress for white parents who object to school officials sending their children to predominantly Negro schools outside their neighborhood.

Justice Edward G. Baker of State supreme court said yesterday the board's plan violated a section of the State education law that says:

"No person shall be refused admission into or excluded from any public school in the State of New York on account of race, creed, color, or national origin." In Albany, the State education department's counsel, Charles A. Brind, pointed out that the same section was cited by the Malverne Board of Education in its argument against a State order to end racial imbalance in its three schools. Education Commissioner James E. Allen, Jr., rejected that argument in refusing to reconsider his order.