each case, but a naked and arbitrary power to give or withhold consent . . . The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint."

And, at 369-70: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." Accord, e.g.; Gulf. C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 155, 159-60 (1897); McLaughlin v. Florida, 379 U.S. 184, 190-91 (1964).

The conclusion of the Supreme Court in striking down the San Francisco ordinance serves as well to indict the "free will" classification of these bills: “... [I]n the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Yick Wo, supra, 118 U.S. at 370.

G. THE "FINDINGS" STATED IN S. 619 WILL NOT RENDER THE PROVISIONS OF THE BILL CONSTITUTIONAL

H. THE ENFORCEMENT CLAUSE OF THE FOURTEENTH AMENDMENT GRANTS CONGRESS NO LICENSE TO AUTHORIZE VIOLATIONS OF FOURTEENTH AMENDMENT RIGHTS OR TO DEFEAT THEIR ENFORCEMENT

Section 5 of the Fourteenth Amendment says in its entirety: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Since the pending bills attempt to bar the enforcement of judicially-defined rights, the position of their proponents has to be that the congressional power to enforce under section 5 includes the power to define a lesser duty to desegregate than that contemplated by the courts, and thereby to authorize and to legalize a school district's nonconformity with judicially-declared standards. Stripped to essentials, their argument must be that the section 5 power to enforce includes the power to repeal constitutional pronouncements of the Supreme Court with respect to this Amendment.

The identical argument had been raised in Congress in support of proposals to bar implementation of the Supreme Court's reapportionment decision in Reynolds v. Sims, 377 U.S. 533 (1964). Evaluating its merit, Associate Dean Robert McKay of New York University Law School wrote:

"[T]o describe the proposal as an exercise of congressional power to enforce or implement the protections of the fourteenth amendment is surely a perversion of plain meaning that should not be tolerated. The whole proposal was thus infected with serious doubt as to its constitutionality." "Court, Congress, and Reapportionment," 63 Mich. L. Rev. 255, 273 (1964).

In light of the cases decided by the Supreme Court since the end of the Civil War, the Administration's assertions of the right to restrict the judicial implementation of Fourteenth Amendment rights by legislative fiat is astounding. If such power existed-under §5 of the Fourteenth Amendment or under the Article III power of Congress to "ordain and establish" inferior courts-the Fourteenth Amendment would stand on no firmer ground than on ordinary statute, susceptible to day-to-day legislative change in accordance with the political winds of the moment.

The deepest purpose of a written constitution is that it sets limits to the powers of each branch of government, and the notion of a Congressional power to authorize conduct violating its prohibitions is incompatible with that purpose. Fourteen years after the ratification of the Constitution, Chief Justice Marshall reached the same conclusion:

8 When the Administration's 1972 anti-busing proposals were before Congress, the Administration defended their constitutionality by asserting that the proposals did not restrict 14th Amendment rights, merely the remedies for these rights. It is inescapable, however, that the prohibition of essential remedies will allow school districts to retain some of the vestiges of officially-imposed segregation. It would balk at reality to state that such an authorization of continued segregation has no effect on 14th Amendment rights.

30-623-74-19

"The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary

act.

"Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). Justice Brandeis' historic dissent in Olmstead v. United States, 277 U.S. 438, 485 (1928) is equally valid as a warning against every effort to bar by indirection the practical implementation of the Constitution: "In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Each of the Civil War Amendments has an Enforcement Clause nearly identical in language to that of § 5,9 and they have all been interpreted similarly, both by Congress and by the courts. Despite many politically unpopular decisions construing rights under the Civil War Amendments, Congress has never, in the hundred years since their passage, attempted to use its "power to enforce" the provisions of any of these amendments in order to restrict the scope of judicially-declared rights thereunder. This long-standing practical construction of its powers by Congress must be taken into consideration. More directly, the Supreme Court has construed the Enforcement Clause of the Eighteenth Amendment to preclude the construction urged by the Administration: "The second section of the amendment-the one declaring 'The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation' does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means." Rhode Island v. Palmer, 253 U.S. 350, 387, 40 S. Ct. 486, 488 (1920). That amendment also granted enforcement power to the States. In McCormick v. Brown, 286 U.S. 131, 143–44 (1932), the Court held again that "state legislation cannot give validity to acts prohibited by the Eighteenth Amendment...."

Seven of the Justices presently sitting on the Court-a clear majority—have already expressed their view that the Enforcement Clauses of the Civil War Amendments give Congress no power to dilute judicially-declared rights thereunder.

In Katzenbach v. Morgan, 384 U.S. 641, 651 n. 10 (1966), Justice Brennan wrote: "... § 5 does not grant Congress power to exercise discretion in the other direction and to enact "statutes so as in effect to dilute equal protection and due process decisions of this Court.' We emphasize that Congress' power under $5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems of education would not be as required by § 5-a measure 'to enforce' the Equal Protection Clause since that clause of its own force prohibits such state laws."

913th Amendment, § 2: "Congress shall have power to enforce this article by appropriate legislation."

14th Amendment, § 5: "The Congress shall have power to enforce by appropriate legislation the provisions of this article."

15th Amendment, § 2: "The Congress shall have power to enforce this article by appropriate legislation."

Only two Justices dissented from the decision; all others joined the majority opinion in all or most of its respects, including this point. The majority on this point thus included Justices Brennan, White, and Douglas.

In Oregon v. Mitchell, 400 U.S. 112 (1970), Justice Brennan again made the same point. 400 U.S. at 249 n. 31. He was joined by Justice White and Marshall. Justice Stewart, joined by Chief Justice Burger and Justice Blackmun, held that Congress has a general legislative power under § 5 to protect Fourteenth Amendment rights, and went on: "But even though general constitutional power clearly exists, Congress may not overstep the letter or spirit of any constitutional restriction in the exercise of that power. For example, Congress clearly has power to regulate interstate commerce, but it may not, in the exercise of that power, impinge upon the guarantees of the Bill of Rights." 400 U.S. at 287. The late Justice Black had reached the same conclusion: "Congress may only 'enforce' the provisions of the amendments and may do so only by 'appropriate legislation.' Congress has no power under the enforcement sections to undercut the amendments' guarantees of personal equality and freedom from discrimination, see Katzenbach v. Morgan, 384 U.S. 641, 651 n. 10, 86 S. Ct. 1717, 1728, 16 L.Ed. 2d 828 (1966), or to undermine those protections of the Bill of Rights which we have held the Fourteenth Amendment made applicable to the States." 400 U.S. at 128-29 (footnote omitted).

The purpose of the enforcement clauses are well illustrated by a consideration of the legality of literacy tests for voter registration. In Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 51-53 (1959), the Court held unanimously that, absent proof of discriminatory administration, North Carolina's literacy test for voting did not violate the Fourteenth or Fifteenth Amendments. Then the Voting Rights Act of 1965 was passed, and Congress suspended all literacy tests in the areas covered by the Act, based upon evidence of discriminatory administration in some areas. § 4(a) of the Act, 42 U.S.C. § 1973 b(a). When the Act was challenged, the Supreme Court held that an across-theboard suspension, even without prior adjudication of a particular test's invalidity because of discriminatory administration, was appropriate legislation to "enforce" the Fifteenth Amendment. South Carolina v. Katzenbach, 383 U.S. 301, 333-34, 337 (1966). The ban on literacy tests was extended nationwide by the Voting Rights Amendments of 1970. § 201 of the amended Act, 42 U.S.C. § 1973aa. This too, was upheld under the enforcement clause of the Fifteenth Amendment and, for Justice Douglas, the enforcement clause of the Fourteenth Amendment. Oregon v. Mitchell, 400 U.S. 112 (1970).

The impact of the § 5 power upon the scope of Fourteenth Amendment rights here is clear. In an area which the Court had refused to enter because of the limitations on its decision-making power, the enforcement clause gave Congress the power to define new rights, and to provide new means of effectuating old rights as by requiring the submission of changes in voting requirements and practices to be submitted to the Attorney General before taking effect, in order to protect the existing, judicially-declared right to freedom from discriminatory obstacles to voting.

This is in accord with the time-honored understanding of Congress' enforcement clause powers:

"Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation, is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." Ex parte Virginia, 100 U.S. 339, 345-46 (1880) (emphasis in original).

I. THE CONGRESSIONAL POWER OVER THE JURISDICTION OF FEDERAL COURTS CANNOT BE USED TO DEFEAT 14TH AMENDMENT RIGHTS

10

1. Background

The above discussion makes it clear beyond dispute that the provisions of S. 179, S. 619 and S. 1737, viewed in themselves, are unconstitutional. It is also beyond dispute that they are not saved from unconstitutionality by the presence or absence of a statement of "findings" or by reliance on the power of Congress

10 Most of this part of this memorandum is taken from a 1972 memorandum written by Lewis D. Sargentich in response to the Administration's 1972 antibusing proposals.

to enforce the 14th Amendment by "appropriate legislation". The remaining question is whether, under the Constitution, Congress is permitted to achieve the very same unconstitutional result through indirection and legerdemain-by legislation designed to hamper the enforcement powers of the Federal courts. The proponents of this legislation are forced to argue that Congress has the power to make such "exceptions" to the Supreme Court's appellate jurisdiction under Article III, section 2, and the power to vest the lower Federal courts with such jurisdictional powers, as Congress sees fit. They are then further forced to argue that this power can be exercised so as to repeal or modify at will any judicially declared constitutional right. Such a contention is profoundly anticonstitutional. Our constitutional scheme commits to the nation's judiciary the final power to interpret the fundamental law, saving always the power of constitutional amendment through prescribed procedures. To assert a legislative power of nullification over the constitutional decisions of the Supreme Court, is to pose a blatant challenge to the fundamental principle of separation of powers. Such unfettered power would altogether subvert judicial supremacy in declaring the law of the Constitution—indeed, it would subvert the very institution of a written constitution that is supreme law unless modified through the amendment process.

There are few authoritative pronouncements by the courts that serve to define the limits upon congressional power to regulate the jurisdiction of Federal courts, and this is no wonder. Congress has never attempted what these proposals aim at achieving—that is, there has never been a law passed that expressly singles out a class of constitutional rights lying within the core purpose of a constitutional provision, and seeks systematically to bar judicial enforcement of the rights selected.

"Congress has never . . . actually sought to push its authority over jurisdiction so far. The basic jurisdictional statutes actually enacted have allowed the judges to carry on their essential review functions with reasonable effectiveness. . . The organic power vested in the Congress over the competence of the judicial department does not enable it to act in a manner that would, in effect, negate all judicial authority to vindicate constitutional rights."

B. Schwartz, I A Commentary on the Constitution of the United States: The Powers of Government 365 (1963). The anticonstitutional nature of such legislation should be enough to cause its rejection by the Congress-it always has been enough in the past. The unconstitutional nature of such legislation would, in any event, cause its denunciation and invalidation by the courts.

2. The Historic Primacy of the Federal Courts in Enforcing 14th Amendment Rights

The inevitable challenge to the principle of separation of powers, posed by any legislation aimed at curtailing the enforcement powers of courts in constitutional cases, is immeasurably heightened in the present context by virtue of the unique role of federal courts in enforcing Fourteenth Amendment rights. The proposed legislation would have the Congress turn its back on a hundred years' tradition of expanding federal jurisdiction to enforce constitutional rights-disregard the vital necessity that claimants within the special protection of the Fourteenth Amendment have continued access to the full panoply of remedies ordinarily available in federal courts—and intervene to restrict the courts in their uncompleted task of implementing the fundamental principles of Brown.

It is highly significant that the great expansion of the jurisdiction of federal courts came in the period immediately following the Civil War. "[A]fter the Civil War. . . the basic change was made whereby the national courts became the primary forum for the vindication of federal rights. . . . Congress freely invoked the federal courts to secure the Negroes newly granted civil rights, and there was enacted a series of jurisdictional provisions most of which have lasted to this day." Hart & Wechsler, The Federal Courts and the Federal System 727-729 (1953). The Civil Rights Act of 1871 enacted a general cause of action for civil rights deprivations by state officials, and the Congress vested original jurisdiction of such claims in the federal courts-school desegregation cases today are tried under the provisions of that legislation. Four years later the federal courts were given original jurisdiction over all cases (beyond a certain dollar amount) involving claims under federal law. Thus there emerged the modern judicial system under which "the federal courts are the primary guardians of constitutional rights," and it remains “a principal function of the federal courts to vindicate the constitutional rights of all persons." Perez v. Ledesma, 401 U.S.

82, 118-119 (1971) (concurring opinion). See also Zwickler v. Koota, 389 U.S. 241, 247 (1967); McNeese v. Board of Education, 373 U.S. 668, 672-674 (1963). The core purpose of the Equal Protection Clause is to protect black citizens of this nation against continued denial of equal status and dignity—“to take away all possibility of oppression by law because of race or color." Ex Parte Virginia, 100 U.S. 339, 354 (1880). Indeed, so clear was the guiding spirit and purpose of the Clause that the Supreme Court remarked in 1873: "We doubt very much whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." The Slaughter-House Cases, 83 U.S. (16 Wall.) at 410. The prophecy proved empty, but it remains that any attempt to legislate against full vindication of the Fourteenth Amendment Rights of black school children must be seen as striking at the heart of the Amendment. The primary intended beneficiaries of the Amendment are a racial minority stigmatized and oppressed for centuries and unlikely to prevail in majoritarian institutions such as legislatures or school boards-the Equal Protection Clause, seen as a limit on abuses of majoritarianism, is nugatory absent vigorous enforcement by the courts. "[U]nder the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances." NAACP v. Button, 371 U.S. 415, 430 (1963).

The whole history of school desegregation shows the vital and unique constitutional role of federal equity courts in implementing the command of Brown v. Board of Education. In Brown II the Supreme Court decided not to exercise its own power to frame a decree giving detailed relief, but rather remanded the cases to the district courts with instructions "to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. . . . [The lower courts shall] consider the adequacy of any plans the defendants may propose . . . to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases." Brown v. Board of Education, 349 U.S. 294, 299-301 (1955). Numerous times during the ensuing decade and a half the Supreme Court had occasion to underscore the intense responsibility of the courts in school desegregation cases—“. . . if Negro children of school age were to receive their constitutional rights as we had declared them to exist, the coercive assistance of courts was imperatively called for." United States v. Montgomery County Board of Education, 395 U.S. 225, 228 (1969). As a direct result of Brown II the district courts “were invested with a discretion appropriate to ultimate fashioning of detailed relief . . ." Watson v. City of Memphis, 373 U.S. 526, 531 (1963)—the power of the lower courts, under the broad mandate of Brown II, was held to include if necessary an order directing school authorities to reopen schools they had closed and to levy taxes to support public education. Griffin v. County School Board, 377 U.S. 218, 233 (1964).

The decision of Brown II to tolerate some delay in according full constitutional relief entailed a unique commitment of the federal judiciary to the process of bringing dual school systems into compliance with the Constitution. In time the constitutional command came to be articulated in terms of the right to call upon the enforcement powers of the courts. In 1969 the original all-deliberate-speed standard was held "no longer constitutionally permissible," Alexander v. Holmes County Board of Education, 396 U.S. 19, 20 (1969), and expedited procedures to ensure full relief were held mandatory: "plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. . . Such relief shall become effective immediately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system." Carter v. West Feliciana Parish School Board, 396 U.S. 290, 292 (1970) (concurring opinion).

The affirmative duty doctrine, which is primarily a formulation of the constitutional obligations of school officials, was also articulated in terms of the enforcement duties of the federal courts. "We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Louisiana v. United States, 380 U.S. 145, 154 (1965), quoted in Green v. County School Board, 391 U.S. 430, 438 n. 4. (1968).

Recently in the Swann case, Chief Justice Burger reemphasized the fundamental role of their courts: "In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion