system of this country, and I am really amazed that you would take that point of view. Senator ERVIN. Mr. Attorney General, I have so much confidence in the judicial system of this country with the basic constitutional rights which the people of America have under the Constitution, I cannot possibly see the wisdom of adopting a statute which in practical effect will destroy the rights of the people to indictment by a grand jury, trial by a petit jury, and the right to be allowed to confront and cross-examine their accusers. Those rights are so sacred to me I wouldn't take them away from any American citizens. Mr. BROWNELL. Each time you say that I have to say, so the record will be complete, that this program does not do that and you have not introduced an iota of evidence that it does. Senator HENNINGS. Will the Senator yield for one question to the Attorney General? Isn't it true that when the Colonies separated from the mother country and became the United States of America, did we not incorporate the British common law? Mr. BROWNELL. Yes. Senator HENNINGS. And did we not do so in spite of the fact that there was a judge, for example, such as the notorious Judge Jeffreys in the British judicial system? We did incorporate the British common law, did we not? Mr. BROWNELL. Yes; we did. That is a good point. Senator ERVIN. In that connection, when the people of America adopted and drew up the Declaration of Independence, to set forth the reasons why they were separating themselves from England, they set forth in that Declaration as one of those reasons the fact that the King had deprived them of the right to trial by jury, did they not? Mr. BROWNELL. Yes. Senator ERVIN. And yet these proposed amendments will deprive the American people in practical operation of their right to trial by jury, won't they? Mr. BROWNELL. You are 100 percent wrong on that, Senator, I must say. Senator ERVIN. Mr. Attorney General, you say I am 100 percent wrong? Mr. BROWNELL. Just 100 percent. Senator ERVIN. When I say that the substitution of equitable remedies for legal and criminal remedies will deprive the people of the right to a trial by jury, sir? Mr. BROWNELL. This doesn't substitute. You yourself said so. Senator ERVIN. I didn't say so. I said if there are two roads to Baltimore, a man will try to travel the easiest one. He will not try to travel both. You advocate this bill establishing equitable remedies. You said yourself the reason for the passing of the law was you thought this was a more benign way of handling the situation than having criminal prosecutions. Mr. BROWNELL. Don't you? Senator ERVIN. I do not. I will tell you why. We have agreed several times that under this law the question whether or not the equitable remedies shall be invoked at all under these amendments is to be determined according to the discretion of the temporary occupant of the Office of the Attorney General of the United States. Mr. BROWNELL. That's pursuant to the Constitution just as much as the other is. They are alternatives. Senator ERVIN. If this bill is passed and the Attorney General nods his head from the left side to the right side to signify that there will be no suit brought under this bill, then in that event, the State laws prescribing administrative remedies will stand up and remain in full force and effect; whereas, if the Attorney General nods his head up and down to signify that there will be an invocation of the equitable remedies to be authorized by these amendments, then and in that event the State statutes prescribing administrative remedies fall to the ground and become wholly inoperative for the particular case. That is not a government by law. It is not even a government by men. It is a government by the nod of a temporary occupant of the Attorney General's office. Mr. BROWNELL. Again I will have to score you zero, Senator, because this whole program wouldn't give me an iota of authority that was not subject to the final check of the Federal judiciary. It is the Federal courts that will have these decisions and not the Attorney General. That is just as elementary in your system Senator ERVIN. Now wait a minute. I will have to say I rate you about 99.9 percent wrong on that if we are to grade each other. Mr. BROWNELL. I am one-tenth of a point ahead of you. Senator ERVIN. The Federal courts cannot determine whether or not the Attorney General will invoke equitable relief. Mr. BROWNELL. He cannot determine whether the relief is given. The citizen is not affected until the court decisions come down. Senator ERVIN. The court can't act in the matter until the Attorney General nods one way or the other yes or no, can he? Mr. BROWNELL. That's a right that is protected by the Constitution too for the benefit of the citizens of the country in order to escape from some of the harshness of the old criminal laws. That's one of the greatest improvements we had in our judicial system which was the development of these equitable devices to soften the hardships of the old criminal law. No lawyer can challenge the correctness of that statement. Senator ERVIN. Suppose you answer the question. Read the question. Senator HENNINGS. Will the reporter please read the last question. (Question read.) Senator ERVIN. You said the Federal court would make decisions on these matters but the fact is the Federal court will have no opportunity to make a decision in these matters under these amendments until the Attorney General either nods his head yes or no signifying whether or not he will bring the proceeding. Mr. BROWNELL. As I say that is one of the rights of the citizens which is protected under the Constitution. The United States cannot start a case in this area unless the Department of Justice starts it. But the citizens' rights cannot be affected unless there is a decision of the court. Senator ERVIN. Let me come back a third time to my question. I think you assumed that you answered my question. I believe you agree with me--we'll get back to a place of agreement--that under these amendments the Federal courts will never be given an opportunity to pass on any of these matters until after the Attorney General has exercised his discretion and decided whether or not these remedies should be invoked. Mr. BROWNELL. Well, of course, the private citizen can bring a suit. but in the public action, a Government action, the Attorney General is the chief law officer and he starts the ball rolling but the rights of a citizen are not adjudged by him. They are adjudged by the Federal judiciary. Senator ERVIN. I infer from your statement that I am correct in the statement that whether or not the provisions of parts 3 and 4 will ever come into operation insofar as bringing of suits is concerned, is dependent first of all upon the decision of one man, to wit, the temporary occupant of the Office of Attorney General of the United States. Now if I am incorrect and wrong in drawing that inference from your statement, I will be glad to know. Mr. BROWNELL. The Attorney General authorizes the suit to be brought, that is correct. Senator ERVIN. And if he doesn't authorize it it can't be brought. Mr. BROWNELL. That does not strike down any State laws or regulations. It doesn't interfere with the constitutional rights of any citizens. It merely presents the case to the court for decision and everybody who is affected by the proposed action is given his day in court and the decision on those conflicting claims is made by the Federal judge and that may be appealed right straight up the line so that there will be uniform interpretation throughout the country. Senator ERVIN. But until the Attorney General makes the initial decision the other 160 million people in the United States have no voice whatever in the matter. Mr. BROWNELL. They have their rights, too. Senator ERVIN. They have a voice but they are not required to be heard. Mr. BROWNELL. They can start their own suits, Senator, under the existing law. Senator ERVIN. Under existing law. I'm talking about the changes you advocate in the law. The power to put parts 3 and 4 of this bill in motion is confided by this bill to 1 man, namely, the temporary occupant of the Office of Attorney General to the exclusion of the other 160 million Americans; isn't it? Mr. BROWNELL. That doesn't come about by reason of the passage of this program. That comes about by reason of the form of our Government. Under the constitutional laws of the United States the Attorney General takes an oath that he will enforce the laws of this country. That means that every time a Congress passes a statute that it is his obligation to see that this is carried out and the way that he does it is the way which you indicate. He starts proceedings in the Federal courts. Senator ERVIN. And he is the only one of the 160 million Americans who would have a legal right to start proceedings under this amendment. Mr. BROWNELL. He acts under powers that were imposed upon him by Congress. Senator ERVIN. I think you are begging for it. I am not seeking to impose it upon you as far as I am personally concerned. I see a couple of your associates shake their head "no." You can consult with them. I can't require you to answer a question yes or no. But I submit that you could very well answer this question yes or no: That under these proposed amendments set forth in parts 3 and 4, the question of whether or not the powers conferred upon the Attorney General of the United States by those amendments shall be exercised are confided to the sole power of one individual, namely, the temporary occupant of the Office of Attorney General to the exclusion of every other human being in the United States; isn't that right? Mr. BROWNELL. Well, the powers that are imposed upon the Attorney General by the statute, he would exercise them; yes. Senator ERVIN. I will put the question in another way. Mr. BROWNELL. The trouble with the kind of questions you are asking is that you made a statement first that by the nod of the head the Attorney General could take away rights from the States or take away rights from individuals. Now you get down to this question. What I want to be sure is that the record is very clear that the Attorney General's only function here is the one which is given to him by Congress to start proceedings in this area. But that so far as decisions of the rights of the States or the individuals are concerned that is not his decision at all. He only presents the case, starts the case going, and the Federal judges as they do in every area of Federal jurisdiction are the ones that make the decisions that affect people's rights. Senator ERVIN. I will ask my question in another form and maybe I can get a direct answer, not preceded by an explanation which excludes the answer. Under this bill not a single one of any of the inhabitants of the United States of America could exercise any power to put parts 2 and 3 in motion according to the amendments except the one man who occupies the Office of Attorney General. Mr. BROWNELL. Well, you see if this program passes-and I believe it is going to then it amends the statute, it amends the statute and the parts of the statute that are already on the books are still a part of that statute. They provide Senator ERVIN. I am very familiar with what they provide. Mr. BROWNELL. I think I should have the same opportunity as you to express my opinion. Senator ERVIN. Oh, yes. Mr. BROWNELL. They provide that some of these actions can be brought by private individuals. That stays in the law. This is not a substitute for that. This is an addition to that. So that it would not be accurate to say under the statute as amended or proposed to be amended by this series of bills that the Attorney General would be the only one to take the action. We are not taking away the right of the individual to start his own action. That still stays in the law. Senator ERVIN. Mr. Attorney General, I will ask you this: Then under part 3 of S. 83, if it should be adopted and become law, can any human being other than the temporary occupant of the Office of Attorney General of the United States exert the power, the new power, created by subsection 4 which reads as follows: Whenever any persons have engaged or are about to engage in any acts or practices which would give rise to a cause of action pursuant to paragraph first. second, or third, the Attorney General may institute for the United States or in the name of the United States but for the benefit of the real party in interest a civil action or other proper proceeding for redress or preventive relief including application for a permanent or temporary injunction, restraining order, or other order. That is the end of it. My question to you is very simple. Of all of the 160 million people in the United States, would any person have any authority under this provision I have just read to you except that one individual who happened to occupy for the time being the Office of Attorney General of the United States? Mr. BROWNELL. Yes. Senator ERVIN. Who? Mr. BROWNELL. Private individuals, based on the same set of facts. They could still bring their own actions. Senator ERVIN. Are you telling me that a private individual could bring an action in the name of the United States and get this preventive relief? Mr. BROWNELL. No. Senator ERVIN. I didn't think so. I am just a little bit curious as to why you persist in talking about old remedies when you are asked about the proposed new remedies. I believe you have never gone to one of those old carnivals we used to have where a person stuck his head through a hole in a canvas and another fellow paid a nickel to throw three balls at him which he undertook to dodge. Mr. BROWNELL. A part of that depends on the pitcher. If he throws the ball to the outfield it is a little hard for the catcher to catch it. Senator ERVIN. We just had two people in the game at the carnival, the fellow who threw the ball and the fellow who stuck his head. through the hole in the canvas, and who undertook to dodge the bail. Mr. BROWNELL. In the other 47 States they have 9 men on the team. Senator ERVIN. They have two men only in this game at the carnival. There is a hole in the canvas. The employee sticks his head through it and the customer pays for the privilege of throwing three balls at him. The customer used to pay a nickle. I guess now in the age of inflation it has been changed in that respect. The customer could throw three balls at the employee and if he hit him he got a prize from the fellow who operated the concession. If I ever go into the carnival busines I will try to make arrangements with you, to stick your head through the canvas, and dodge the balls. I don't believe anybody could ever hit you. Mr. BROWNELL. I would like to be there. Those fellows try to hit the target. They don't try to shoot off and hit a bogieman up here. Senator ERVIN. But I am not shooting at any target. Mr. BROWNELL. I believe that is right. Senator ERVIN. I am just trying to find out what the fact is— whether there is any human being in the United States other than the temporary occupant of the Office of Attorney General who could set in motion the new remedy prescribed by this bill. I think at long last, after throwing many balls, we have decided that no one else has that power. Mr. BROWNELL. If you are satisfied with the answers, I am. |