838 NORTH CAROLINA LAW REVIEW (Vol. 50 Supreme Court said as dictum that "[t]here can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.""" However, the Supreme Court is not so casual when the denial of federal jurisdiction also constitutes a denial of substantive constitutional rights." And, a series of decisions by the various courts of appeal under the Portal-to-Portal Act13 recognize that Congress may not exercise its control over the "inferior" federal courts in a manner that denies those courts the power to vindicate rights guaranteed by the Constitution. Some background to these decisions might be useful. The Fair Labor Standards Act requires the payment of minimum wages, with time-and-a-half for hours worked in excess of an eight-hour day or a forty-hour week. In a series of cases at the close of World War II, the Supreme Court ruled that once an employee had crossed the portal of his place of employment, the "work day" and the "work week" included such preliminary and incidental activities as walking to the place where the work was to be done, changing to work clothes in the locker room, showering after work was over, and so on. These decisions were quite unexpected and resulted in "windfall” obligations to thousands and thousands of employees. Almost two thousand suits were filed for back pay, claiming liability in excess of five and one-half billion dollars. The House Judiciary Committee investigated the situa 165 Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938) (footnote omitted). Shinner, who sought and obtained an injunction in the lower federal court, argued only that the picketing in front of his store did not constitute a "labor dispute" within the meaning of the Norris-LaGuardia Act because none of the pickets were employed by him. He did not argue that he had a constitutional right to a federal court injunction against labor union picketing. 142 See, e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965). There, a federal law forbade federal, courts to "stay proceedings in a state court." Nonetheless, the Supreme Court approved of a federal court injunction against a threatened state criminal prosecution because the state criminął law "chilled" the exercise of first amendment freedoms. See also Lipke v. Lederet, 259 U.S. 557 (1922), where a federal law forbade federal courts to entertain any suit "for the purpose of restraining the assessment or collection of any tax." The Supreme Court, despite this jurisdictional i barrier, issued an injunction against the collection of money allegedly due under a federal tax law. The Court's conclusion was that the amount of money demanded was an "unconstitutional penalty" and thus not a "tax." 1329 U.S.C. §§ 251-62 (1970). 14429 U.S.C. §§ 206-07 (1970). 145 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946); Jewell Ridge Coal Corp. v. Local 6167, UMW, 325 U.S. 161 (1945); Tennessee Coal, Iron & R.R. Co. v. Muscoda Local 123, 321 U.S. 590 (1944). The legislative background and the ensuing statute are discussed at some length in Seese v. Bethlehem Steel Co., 168 F.2d 58, 59-61 (4th Cir. 1948). 1972] MORATORIUM ON "BUSING" ORDERS 839 tion and concluded that payment of these claims would result in the bankruptcy of thousands of employers." Consequently, Congress passed the Portal-to-Portal Act, which did two things. First, it provided that no employer shall be subject to any liability under the Fair Labor Standards Act because of a failure to pay minimum wages or overtime compensation for work performed in the past unless the work activities were compensable at the time they were performed by either an express contract or by custom or practice. Secondly, the Portal-to-Portal Act provided that "[n]o court of the United States . . . shall have jurisdiction of any action or proceeding... to enforce liability for or on account of the failure of the employer to pay minimum wages or overtime compensation" unless the work activities were compensable at the time performed by contract, custom, or practice." 168 Motions were immediately made to dismiss the cases then pending in the federal courts. The plaintiffs argued against these motions for two reasons: because the Portal-to-Portal Act deprived them of property rights guaranteed by the fifth amendment to the Constitution, and because, a fortiori, the denial of access to a federal court to enforce these claims was also unconstitutional. If Congress has absolute control over the "inferior" federal courts and can choke off their jurisdiction even when this results in the inability to enforce rights protected by the Constitution, none of the courts would have considered the first issue raised by the plaintiffs in the pending cases. But all of them did. They all considered and rejected the contention that the Portal-to-Portal Act denied property rights guaranteed by the Constitution.170 Typically, Judge Parker of the Fourth Circuit wrote that Congress may not "take one man's property and give it to another or arbitrarily strike down rights arising under contract.""" But, he added, "nothing of that sort is involved" in the Portal-to-Portal Act, because the rights stricken down by the statute are not rights arising out of contract but rights created by statute, which can be destroyed by the same power that 1729 U.S.C. §§ 251-62 (1970) (originally enacted as Act of May 14, 1957, ch. 52, 61 Stat. 84). 129 U.S.C. § 252(a) (1970). 100 Id. § 252(d). 17 E.g., Fisch v. General Motors Corp., 169 F.2d 266 (6th Cir. 1948); Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948); Seese v. Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948); Rogers Cartage Co. v. Reynolds, 166 F.2d 317 (6th Cir. 1948). 171Seese v. Bethlehem Steel Co., 168 F.2d 58, 64 (4th Cir. 1948). 840 NORTH CAROLINA LAW REVIEW created them.172 Judge Parker then concluded: [Vol. 50 Since the provisions of sec. 2(a) of the act, striking down portal to portal claims not based on contract, custom or practice are valid, there can be no question as to the validity of sec. 2(d) denying jurisdiction to the courts to entertain the claims. . . . Whether the denial of jurisdiction would be valid if the provision striking down the claims were invalid is a question which does not arise.173 174 In a portal-to-portal suit in the Sixth Circuit (where the same issues were raised), Judge Hicks concluded that the Act “in no way interferes with the powers of the judiciary.” He then added that “[s]hould Congress undertake to withdraw from the courts jurisdiction to consider and determine pure questions of ownership or title to property . . . a more serious question would be presented, but we are not confronted here with such a case."'175 Judge Chase was even more pointed in the portal-to-portal suit in the Second Circuit. He wrote for that court as follows: A few of the district court decisions sustaining section 2 of the Portal-to-Portal Act have done so on the ground that since jurisdiction of federal courts other than the Supreme Court is conferred by Congress, it may at the will of Congress be taken away in whole or in part.... We think, however, that the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.176 President Nixon, of course, is asking Congress to do what it did not do in the Portal-to-Portal Act-"to interfere with the power of the judiciary to protect rights vested under the" Constitution. His proposals challenge not only "busing" but also the very idea of law itself. 177 172 Id. 173 Id. at 65. 174 Fisch v. General Motors Corp., 169 F.2d 266, 272 (6th Cir. 1948). 175 Id. at 273. 17 Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948) (emphasis added) (footnote omitted). Fisch v. General Motors Corp., 169 F.2d 266, 272 (6th Cir. 1948). 1972] MORATORIUM ON "BUSING" ORDERS 841 The portal-to-portal cases strongly indicate that Congress has no power to withhold or restrict the jurisdiction of the "inferior" courts when the withholding or restriction of that jurisdiction would deny or deprive persons of property rights guaranteed by the fifth amendment. It follows that Congress has no power to withhold or restrict the jurisdiction of the "inferior" courts when the withholding or restriction (as suggested by the Nixon "busing" proposals) would deny school children of the rights already declared to be theirs under the equal protection clause of the fourteenth amendment. CONCLUSION President Nixon wants to put the Constitution on the back of the bus and to give the federal courts a second-class citizenship among the three independent branches of government. He has found a scapegoat but no solution to a difficult problem. Many parents have legitimate concerns that their children will be transported from "nice" neighborhoods into schools that are old, dirty, dilapidated, over-crowded, understaffed, and located in the "bad" section of town. But if the schools are harmful for one child, they are harmful for all children. The problem is not the bus ride, but what one finds when the bus ride ends. The solution is to replace the bad schools and to upgrade the educational opportunities within them. This requires money, much more than the token amount requested by the President. But improvement of the schools is not enough. Education has had to shoulder a disproportionate share of the burdens of overcoming the effects of segregation. We should now put our efforts in overcoming economic barriers, in overcoming segregated housing patterns, so that every neighborhood will have its own desegregated school. But that, unfortunately, lies in the future. As for the immediate present, we can do no more than applaud the remarks made by Florida Governor Reubin Askew when he asked the people of Florida to repudiate the antibusing proposal on the ballot in that state: I hope we can say to those who would keep us angry, confused and divided that we're more concerned about a problem of justice than about a problem of transportation. And that while we're determined to solve both, we're going to take justice first.17% 2. 17 Address by Governor Reubin Askew, Feb. 21, 1972, in South Today, May, 1972, at 3, col. Senator ERVIN. As I observed before, when the Constitution says one thing and people do not like what it says, they engage in a great deal of philosophizing and peculiar interpretations of words to try to get around it. Mr. HORN. In conclusion, I think, Mr. Chairman, we are talking about simple justice. Senator ERVIN. So do I. I am talking about simple freedom. Thank you, very much. The next witness is Clarence Mitchell, to speak for himself and the organization known as the National Association for the Advancement of Colored People. TESTIMONY OF CLARENCE MITCHELL, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE Mr. MITCHELL. Mr. Chairman, as you have indicated, I am Clarence Mitchell, director of the Washington bureau of the National Association for the Advancement of Colored People. I have also been authorized to represent the Leadership Conference on Civil Rights, of which I am legislative chairman. Before beginning my testimony, I want to make a personal observation which, at this present moment, is reminiscent of another time when I faced you, many years ago. The bell rang, and under the rules of the Senate then prevailing, you were supposed to stop the hearing and go to the floor. My recollection is that you said, these people have come here from North Carolina, they have spent a lot of money and time to get here, and I will stay here and hear them, unless a Federal marshal comes here and takes me out. I say that because I am conscious of the fact that you are leaving the U.S. Senate, and although we have disagreed and continue to disagree on many, many matters, I say to you the words of an old Welsh utterance that my sister gave to me as a birthday present once, “may the road rise with you, and may the wind be at your back, and may God hold you in the hollow of His Hand." Senator ERVIN. Thank you, and I reciprocate that. Although you do not hold the same sound views that I do on certain questions, I will have to admit that during our confrontations I have acquired much admiration for you and much affection. I remember on one or two occasions we stood together and fought such things as preventive detention and no-knock laws. Mr. MITCHELL. I will regret not having an opportunity to cross swords with you in the future, and I wish you well. Senator ERVIN. Thank you. The same to you. Mr. MITCHELL. I would like to say, Mr. Chairman, on behalf of the League of Women Voters, the national body, that I would like to offer for the record a letter which is addressed to you as chairman and signed by Mrs. Lucy Wilson Benson, president of that organization; attached thereto are the views of the league on the question of student transportation. With your permission I would like to offer it. Senator ERVIN. That will be received and printed as part of the record. |