Imágenes de páginas
PDF
EPUB

a remedy that will assure a unitary school system." At 1276. And in the Swann cases the Court twice stated (in identical language) that “The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation . . ." Swann at 1281; Davis v. Board of School Commissioners, 91 Sup. Ct. at 1292.

3. Constitutional Limitations on the Power of Congress to Regulate the Jurisdiction of the Federal Courts

The congressional power to regulate jurisdiction "is not, of course, unlimited." Glidden Company v. Zdanok, 370 U.S. 530, 568 (1962) (Harlan, J.). For example, no one would suggest that Congress could bar black litigants from federal court solely on account of their race. More broadly, it cannot be supposed, consistently with the doctrine of separation of powers and judicial supremacy in interpreting the law of the Constitution, that the power to regulate jurisdiction may be used for the purpose of defeating constitutional rights declared by the highest court. "The power vested in Congress over the jurisdiction of the judicial department may not.. be employed so as to destroy rights guaranteed by the Constitution itself. The Congressional authority to prescribe the rules by which judicial competence is to be governed must be limited to such rules as do not completely eliminate the essential function of the courts in vindicating the rights guaranteed by the basic document. To hold otherwise would be to give the legislative department an all too easy way to circumvent the supreme law. It can scarcely be supposed that the Framers, concerned as they so clearly were with the danger of legislative dominance in the governmental structure they were creating, intended to give Congress what amounts to the power to render organic rights unenforceable in its discretion. To push the Congressional power to withhold jurisdiction to the extreme of permitting constitutional rights to be made completely unenforceable would be to read the basic document as authorizing its own destruction." B. Schwartz, I A Commentary on the Constitution of the United States: The Powers of Government 361 (1963).

"An impenetrable bulwark' against Congressional oppression [as Madison called the Bill of Rights] that could easily be flanked by Congressional withdrawal of jurisdiction from the courts would be no bulwark at all." R. Berger, Congress versus The Supreme Court 294-95 (1969).

Spokesmen for broad congressional power over jurisdiction often invoke Ex Parte McCardle, 7 Wall. 506 (1869), involving a statute withdrawing Supreme Court appellate jurisdiction in habeas corpus cases. The Court pronounced this "exception" to its jurisdiction valid and dismissed McCardle's appeal, thus acquiescing momentarily in the congressional desire to prevent the Court from deciding the validity of Reconstruction legislation attacked by McCardle. Yet it would be incorrect to read the case as establishing unfettered congressional power to prevent the Court from adjudicating constitutional claims. The Court retained the power to issue habeas corpus as an original matter-thus withdrawal of appellate jurisdiction merely closed one avenue, but did not bar access to the Court altogether, and the power to resolve the substantive issues raised by McCardle remained intact. See Ex parte Yerger, 8 Wall. 85 (1869). In any event the McCardle case lacks progeny, and has been criticized in recent years, see Glidden Company v. Zdanok, 370 U.S. 530, 605 n. 11 (1962) (Douglas, J., dissenting). The authority of McCardle is attenuated by the historical context in which the decision was rendered-the opinion recites that argument in the case was delayed because the impeachment trial of President Johnson required the presence of the Chief Justice-it was a time, in short, when separation of powers was a dangerous doctrine to invoke. There is little doubt that the more enduring principle is that of Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), one which strains to protect the primacy and integrity of the Supreme Court against encroachment.

Apart from McCardle there is a dearth of authority supporting congressional power to hamper the courts in enforcing the Constitution. The wartime price control legislation barred the district courts from adjudicating the validity of price regulations, but the same legislation provided a special court to adjudicate these controversies, with review in the Supreme Court-the legislation was upheld because it preserved a fair and effective remedy for litigants in a federal judicial forum. See Yakus v. United States, 321 U.S. 414 (1944), and Lockerty v. Phillips, 319 U.S. 182 (1943). The Norris-La Guardia Act, 29 U.S.C. §§ 101-115, bars the federal courts from issuing injunctions in certain labor disputes, through a declaration that federal judges have no "jurisdiction" to issue such relief. The Act was of course upheld-but this statute simply declares the public policy of

the United States on a nonconstitutional matter, and does not purport to deny litigants injunctive relief to redress constitutional violations. The "Portal-toPortal" Act came after the Supreme Court had construed the Fair Labor Standards Act in a novel manner, giving rise to enormous claims for back pay; the Congress responded by changing the law and denying "jurisdiction" to enforce the broader liability. The Act was upheld in the lower courts, but not on the theory that Congress has unfettered power to interfere with the course of judicial decision-making.

"We think ... 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." Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887 (1948). It it the Fifth Amendment, of course, through which the Equal Protection Clause is enforced against the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954).

In the situations mentioned the exercise of congressional power to control jurisdiction was upheld, but in no case did the extraordinary legislation involved single out a class of constitutional rights and purport to foreclose effective judicial enforcement. See generally B. Schwartz, supra, at 356-65. Yet this is virtually the sum of judicial authority available to spokesmen for the proposed legislation. The field of administrative law presents situations in which the timing and scope of judicial review is limited by statute, but courts have been alert to defend the principle of judicial primacy in deciding matters of law and in controlling the administrative fact-findng process. See, e.g., Crowell v. Benson, 285 U.S. 22 (1932). When statutes have attempted to oust the courts, in whole or significant part, from exercising control over administrative lawlessness, the statutory restrictions have been brushed aside in order to accord constitutional claims a meaningful judicial hearing. See Oestereich v. Selective Service System, 393, U.S. 233 (1968); Wong Wing v. United States, 163 U.S. 228 (1896). The broad principle of these cases is relevant in the present context, for the proposed legislation attempts to commit the constitutional rights of black school children to the uncontrolled discretion of the very administrative authorities-state and local school officials-responsible for violating the Constitution in the first place.

To be sure, Supreme Court opinions acknowledge a broad power on the part of Congress to allocate the judicial business of the United States between state and federal courts. Congress has the power to impose restrictions on federal diversity-of-citizenship jurisdiction, see Sheldon v. Sill, 8 How. 440 (1850), when the result is simply that the controversy be tried in state court. Moreover, "Congress could, of course, have routed all federal constitutional questions through the state court systems, saving to this Court the final say when it came to review of state judgments." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). As noted above, it was not until after the Civil War that broad "federal question" jurisdiction was lodged in federal courts. But these facts about congressional power over jurisdiction in no way support the view that Congress may legislate to prevent effective enforcement of constitutional rights. Remitting a class of cases to state courts, while preserving Supreme Court appellate review, is in harmony with the requirement of effective judicial enforcement. In fact, in circumstances where state law does not adequately accommodate constitutionally protected interests, and federal courts may not be available to the claimant, the Supreme Court has held that state courts may be required to create a special remedy, not otherwise available at state law, in order to vindicate constitutional rights. Ward v. Love County, 253 U.S. 17 (1920); see General Oil Company v. Crain, 209 U.S. 211 (1908).

4. The Fourteenth Amendment Rights Challenged by S. 179, S. 619 and S. 1737 Would Not Be Available Through the State Courts

It is evident that the proposed legislation is not simply a remitting of Fourteenth Amendment suitors to state courts, preserving the Supreme Court's power to review state court judgments in school desegregation cases and to command effective relief. First, all federal courts-including the Supreme Court-would be barred from ordering the full relief required by the Constitution. The Supreme Court would be required to affirm, or decline to review, constitutionally inadequate judgments of state courts. Such an ousting of unifying Supreme

[ocr errors][ocr errors]

Court review is a direct challenge to "the essential role of the Supreme Court in the constitutional plan." Hart, "The Power of Congress to Limit the Jurisdiction of Federal Courts," 66 Harv. L. Rev. 1362, 1365 (1953). In General Oil, supra at 226, the Court noted that "without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution, and the Fourteenth Amendment, which is directed at state action could be nullified as to much of its operation". Such a result was decided to be intolerable, and was rejected by the Court.

Besides the deprivation of Supreme Court review, yet another feature of these three bills guarantees that Fourteenth Amendment rights will not be effectuated through State courts. S. 179, S. 619 and S. 1737 leave intact the original subject matter jurisdiction of the Federal courts in school desegregation cases, and presume to restrict only their enforcement powers. These bills also leave intact the general removal statute, 28 U.S.C. § 1441, which provides that the defendant in any State court action involving a claim of which Federal district courts have original jurisdiction may by filing the necessary papers remove the case to the local Federal district court. Thus, any school board sued in a State court could remove the case to a Federal court where the restriction of remedies sought by these bills would come into play. Avco Corp. v. Aero Lodge, 390 U.S. 557 (1968). As the Supreme Court noted in a case involving the anti-injunction provisions of Norris-LaGuardia, there is "obviously a compelling incentive" for defendants to remove to federal court, when they thereby "gain the advantage of [Federal] strictures upon injunctive relief." Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 245 (1970).

The effect of the general removal statute, therefore, is to cut off the possibility of obtaining a constitutionally adequate remedy in a nonfederal form. This leaves no judicial forum capable of according full protection to the constitutional rights of black school children. There is nothing to support such a result in the decisions allowing Congress to allocate judicial business between state and federal courts.

It is irony indeed that the removal statutes, enacted in the post-Civil War period and designed to ensure "the primacy of the federal judiciary in deciding questions of federal law", Avco, supra, 390 U.S. at 560, should serve to ensure that constitutional rights can receive no greater protection in state court than the proposed legislation would allow in a federal forum.

5. S. 179, S. 619 and S. 1737 Are Not Constitutionally Supportable as an Exercise of Congressional Power to Define the Jurisdiction of Federal Courts The clear purpose and predictable effect of the legislation is to prevent full and effective vindication of Fourteenth Amendment rights, by barring federal courts from exercising ordinary equity powers to aid the desegregation process. Plainly the legislation is not simply an attempt to allocate the judicial business of the United States among available courts or to provide housekeeping rules for the orderly handling of that business. It does not remove a neutrally defined subject matter from the reach of federal courts, but aims specifically at hampering the enforcement of constitutional rights-it preserves jurisdiction in order to deny enforcement. Nothing in the available caselaw suggests that such an abuse of legislative power is permissible.

Much remains to be said in order to sketch the extent of the invasion of judicial integrity that is proposed.

Last term, in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court held that an action for money damages would lie in federal court against federal officials alleged to have violated the Fourth Amendment, although Congress had never created a statutory right to sue for such relief. The Court itself created the cause of action, finding that available remedies for such constitutional deprivations were not fully effective. The Court cited and relied upon the following language of Bell v. Hood, 327 U.S. 678, 684 (1946):

66

". . . it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that the courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."

In his careful and scholarly concurrence in Bivens, Justice Harlan acknowledged that "the judiciary has a particular responsibility to assure the vindication of constitutional interests," 403 U.S. at 407, and emphasized “the presumed availability of federal equitable relief against threatened invasions of constitutional interests. . ." 403 U.S. at 404.

"The reach of a federal district court's 'inherent equitable powers,' Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 460. (Burton, J., concurring), is broad indeed, e.g., Swann v. Charlotte-Mecklenburg. . . . [A] general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see 28 U.S.C. § 1331(a)." 403 U.S. at 405.

The proposed legislation flies in the face of each of the premises of the Bivens decision. It is an attempt to render the courts unable to discharge their "responsibility to assure the vindication of constitutional interests"; specifically, the legislation seeks to deny the power of courts "to adjust their remedies so as to grant the necessary relief," thus invading the "inherent equitable powers" of the judicial branch, as exercised in Swann. In the Bivens situation itself Congress had not previously sought to foreclose the remedy that the Court held to be necessary, but the Government specifically argued in the Bivens case that once a constitutional remedy is in fact created by the Court, Congress would probably have no power to withdraw the remedy by legislation: "At the least there would be substantial doubt whether Congress could simply reject a judicially-created remedy bottomed on the Constitution; a constitutional amend. ment might be needed for such an end." Brief for the United States in Bivens, at 21-22.

Grave constitutional doubts about congressional repeal of Bivens translate themselves into a certainty that congressional overruling of Swann is prohibited by the Constitution. For under the proposed legislation, federal courts would still be required to adjudicate school desegregation cases, but would be barred from according the full relief required by the Fourteenth Amendment. It is obviously offensive to the principle of separation of powers for the courts to be required to adjudicate a controversy and yet be rendered unable to decide it in accordance with the Constitution-in light of American judicial history since Brown II, it is a particularly egregious assault upon judicial integrity for Congress to require that federal courts pronounce upon school desegregation cases yet be without power to grant an effective remedy to redress the wrong uncovered and denounced. To retain jurisdiction and bar enforcement places the courts in an intolerable position: “Jurisdiction is always jurisdiction only to decide constitutionally." Hart & Wechsler, The Federal Courts and the Federal System at 340 (1953). See United States v. Klein, 13 Wall. 128 (1871).

Finally, the proposed legislation is more than a mockery of the constitutional rights left without enforcement, and more than "an unconstitutional attempt to invade the judicial province.” Glidden v. Zdanok, 370 U.S. 530, 568 (1962) (Harlan, J.). The proposed legislation would have the intended effect of freezing an unconstitutional state of affairs by interfering with the corrective judicial process commenced after Brown II. A federal court would be compelled to uphold a desegregation plan well short of what the Constitution requires. The legislation would involve the federal judiciary in sanctioning unconstitutional conduct and ratifying the continuance of a constitutional wrong unabated. Should the courts actually refuse to grant the relief required by Swann, and instead approve desegregation plans that do not and cannot satisfy the Fourteenth Amendment, then they would become at least as involved in the underlying discriminatory conduct as courts that lend enforcement aid to racially restrictive covenants.

Such a course is barred by Shelley v. Kraemer, 334 U.S. 1 (1948), for courts are surely among the addressees of the Constitution, and are bound by the judicial oath to enforce the Constitution as the supreme law.

Indeed, the role of the judiciary under the proposed legislation would be vastly worse than that condemned as unconstitutional in Shelley. In the situation under discussion, the underlying discriminatory conduct is official, not privateand, of course, the courts cannot simply withdraw from an enforcement role, as in Shelley. The courts would remain open to exercise all traditional judicial powers in order to enforce all other constitutional rights calling for equitable relief-all, that is, other than the class of rights uniquely within the purview of the Fourteenth Amendment and uniquely within the protection of the federal

courts. The proposed legislation would, in short, single out the rights o ity and place a special roadblock in the path of their ultimate vindi would amount to authorization and approval of the failure of school discharge their affirmative constitutional duty to desegregate; and it wo the courts-and the Congress-complicit in the denial of constitution When abandonment of a corrective process designed to redress racial di tion has involved consequences such as these, the Supreme Court has not to condemn the action as violative of the Constitution. See Hunter v. 393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967).

J. A WITHDRAWAL OF JURISDICTION OVER ALL CASES INVOLVING THE PUBLIC WOULD BE UNCONSTITUTIONAL

[blocks in formation]

Chairman, Subcommittee on Constitutional Rights, Dirksen Senate Offic ing, Washington, D.C.

DEAR MR. CHAIRMAN: I am enclosing written testimony prepared by Wells, Jr., Chairman of Citizens for Community Schools of Prince County, Inc. This material addresses itself at the subcommittee's recent 1 on busing.

I would appreciate it if this testimony and the supporting material included in the hearing record.

Thanking you for your cooperation and with best wishes, I am
Sincerely yours,

Enclosure.

J. GLENN BEAL

WRITTEN TESTIMONY PREPARED BY ROY N. WELLS, JR., CHAIRMAN, CITIZE FOR COMMUNITY SCHOOLS OF PRINCE GEORGES

Mr. Chairman and members of the committee, Citizens for Community S of Prince Georges County, Maryland, Inc. would like to offer testim behalf of the citizens of Prince George's County who boast the tenth school district in the U.S., and the county which has faced the largest ordered busing to achieve racial balance in the Country to date. We offer mony in favor of S. 179, S. 287, S. 619 and S. 1737.

The American people have consistently expressed their opposition, 8 more, to busing in numerous public opinion polls. We feel a Constitutional a ment is the only means to translate this opposition. The American peop very concerned about busing and are outraged by the lack of responsiven our political system to their overwhelming opposition to something peop not want.

We realize that there were instances before the Civil Rights Act of where a black child was bused past his neighborhood school to attend a school or a white past his neighborhood school to attend a white. That 'wrong! And it is just as wrong today to bus a black or a white child his neighborhood school in order that he will become a part of a racial ba in a school.

The Civil Rights Act of 1964, Public Law 88-352, states:

Section 401-B: " 'Desegregation' means the assignment of students to r schools and within such schools without regard to their race, color, reli or national origin, but 'desegregation' shall not mean the assignment of dents to public schools in order to overcome racial imbalance."

Section 407-2: ". . . and such court shall have and shall exercise jurisdi of proceedings instituted pursuant to this section, provided that nothing h shall empower any official or court of the United States to issue any order ing to achieve a racial balance in any school by requiring the transporta of pupils or students from one school to another or one school district to and in order to achieve such racial balance..."

In May of 1972, the Maryland State Court of Appeals found Prince Geo County to be in full compliance with HEW standards, i.e., segregation in school system was de facto and not de jure; yet in 1973, the Federal Court fo

« AnteriorContinuar »