Katzenbach v. McClung

PETITIONER:Katzenbach
RESPONDENT:McClung
LOCATION:Ollie’s Barbeque

DOCKET NO.: 543
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 379 US 294 (1964)
ARGUED: Oct 05, 1964
DECIDED: Dec 14, 1964

Facts of the case

The owner of Ollie’s Barbecue, in Birmingham Alabama, refused to serve blacks in apparent violation of the Civil Rights Act of 1964. Part of the Act prevented restaurants serving interstate travelers, or receiving a substantial amount of their food from interstate commerce, from discriminating on the basis of race.

Question

Does a restaurant’s refusal to serve blacks burden interstate commerce to an extent that Congress can legitimately prohibit such discrimination?

Earl Warren:

[Inaudible]

Archibald Cox, Jr.:

Mr. Chief Justice, and may it please the Court.

This second case involving Title II of the Civil Rights Act of 1964 comes here on the government’s appeal from a decree of a three-judge court in the Northern District of Alabama, temporarily enjoining the acting Attorney General from taking any steps to enforce Title II against the appellees.

The facts are simple and for the purposes of this appeal, they are undisputed.

Appellees operate a restaurant in Birmingham, Alabama specializing in barbecue meats.

They seek no transient trade by advertising and so far as they know, they serve no interstate guests.

In the 12-month period prior to July 1, 1964, the appellees purchased about $150,000 worth of food.

Included in that sum was about $70,000 worth of meat which was purchased from the Hormel Company at its Birmingham, Alabama plant.

All the meat sold at that plant, about 40% of the appellees total purchases of food came from other states so that it moved in Interstate commerce.

The District Court found that the appellees, not only practiced racial segregation at their restaurant prior to the enactment of the — of the Title II, but since its enactment, they have consistently continued and will continue to violate the Act.

Prior to July 31, 1964, the Department of Justice had never heard of the appellees or of their restaurant.

There’s been no investigation and no specific threat to enforce compliance on the part of their restaurant.

On that day nevertheless, the appellees commenced this action to enjoin the enforcement of Title II.

They alleged two kinds of irreparable injury.

First, they said that actions to enforce Title II by the Attorney General of the United States, all individual Negroes which subject them to the burdens inconvenience of expenses of litigation, and the aggravation of such burdens by a potential multiplicity of suits.

Second, they — and the court below found, that the actual enforcement of the Act that it’s a compliance with, would subject them to irreparable injury through a lost of customers and lost profits.

The government moved to dismiss the complaint upon two, essentially two grounds.

One was that the Court had no equity jurisdiction.

The point was argued on several grounds that here we insist upon it in the form of the big no injury against which they’re entitled to be protected by injunction.

We also argued in the Court below and of course argue here that if the merits were reached, the act is constitutional as applied to the appellees.

The District Court ruled against the government on both grounds and issued an injunction temporarily enjoining the acting Attorney General from taking any steps to enforce the Act against the appellees.

Mr. Justice Black granted a stay on September 23rd and probable notice of jurisdiction was set forth in the order announced by the Chief Justice a moment ago.

In this Court, we press the same two arguments.

While we would welcome a broad ruling on the constitutionality of Title II as applied to the appellee’s restaurant or any other restaurant, the District Court’s assumption of jurisdiction here to enjoin the enforcement of the statute under these circumstances disturbs us so profoundly in its implication for the future administration of this and other statutes that we do feel compelled to insist upon that point as one of two grounds for reversal.

Potter Stewart:

But you really would welcome a determination of the substantive constitutional issue, you could have very well counter claim here as you did in the case you just had argued, didn’t you?

Archibald Cox, Jr.:

Well at the appropriate time for that – the department really didn’t have any knowledge about the restaurant.

There was some argument in the —

Potter Stewart:

The allegations in the — in their complaint.

Archibald Cox, Jr.:

Well I suppose we could have accepted them, we didn’t at that stage. Indeed in the court below, there was some argument, curious situation really developed.

The appellees were arguing the statute applies to us were in violation and the department was insisting that the violation hadn’t been proved.

Archibald Cox, Jr.:

Now I don’t take that position here.

I do say that except the findings below and as the statute applies for them, but we just don’t feel able to waive this point.

Potter Stewart:

Well I —

Archibald Cox, Jr.:

I suppose maybe I don’t welcome it enough, Mr. Justice Stewart to be willing to waive it.

Potter Stewart:

In the Heart of Atlanta case, you waive it by counter claiming and I —

Archibald Cox, Jr.:

That’s true.

Potter Stewart:

And you could have done that here, couldn’t you?

Archibald Cox, Jr.:

It could have been done here.

It is important to us I think —

Potter Stewart:

That’s the only real difference, isn’t it?

Archibald Cox, Jr.:

I think that’s a very real difference.

Potter Stewart:

Well yes but —

What could have sued you in the — it could have sued you for declaratory judgment before a single judge?

Archibald Cox, Jr.:

I think I’d be making the same argument about it, sued for declaratory judgment.

And if you lost the case, you would have a direct appeal to this Court.

Archibald Cox, Jr.:

I think we would have objected to the suit for declaratory judgment on the grounds that I’m going to argue here.

How can you do that with your case if we can treat this as a — as an effect (Voice Overlap)

Archibald Cox, Jr.:

I don’t recall any —

What about Mendoza?

Archibald Cox, Jr.:

In Mendoza —

What about Wickard and Filburn?

Archibald Cox, Jr.:

Wickard and Filburn, there clearly was some penalty.

$117.

Archibald Cox, Jr.:

But still there is some penalty.

There is some — I don’t know whether the point was raised there that — the small penalty but there was something that happened.

Here literally there is absolutely no occasion for these appellees to have taken us to court.

There is —

You certainly — suppose — forget about the injunction for a moment, certainly the [Inaudible] a single judge, you could hardly say in this case that there’s controversy involved in the context of this lawsuit, could you?

Archibald Cox, Jr.:

Well I don’t really put this quite in terms of case of controversy.

I think that for the action under the Declaratory Judgment Act to be appropriate as in the case of an injunction to enjoin enforcement of the statute that there must be some showing that the complainant has some need for relief.

Arthur J. Goldberg:

What about the [Inaudible]

Archibald Cox, Jr.:

I think that the last point of the rule is the essence of it, that in the dealing with constitutional problem and in dealing of particularly with interference with the normal processes of law enforcement that it’s not appropriate unless there is some occasion, some injury to the complainant that entitled him to go to Court.

Now let me if I may — let me point out —

Arthur J. Goldberg:

[Inaudible]

Archibald Cox, Jr.:

Well I — I would perhaps have to put it in somewhat different —

Tom C. Clark:

And argued that it isn’t [Inaudible]

Archibald Cox, Jr.:

I’d argue that it isn’t appropriate.

I would also, perhaps in that case, argue as it was done below although I hadn’t thought it was the most effective argument here that there was no case of controversy.

Arthur J. Goldberg:

[Inaudible]

Archibald Cox, Jr.:

No.

William J. Brennan, Jr.:

Why didn’t you [Inaudible]

Archibald Cox, Jr.:

It’s only I’m, they pressed into it.

William J. Brennan, Jr.:

It’s rather inconsistent.

I gathered from your brief, you weren’t contesting —

Archibald Cox, Jr.:

No, I’m not.

William J. Brennan, Jr.:

You say that it maybe open whether the —

Archibald Cox, Jr.:

No.

I was being asked what I would do if I had another case and to that – I replied to the question.

I don’t have to argue it.

Byron R. White:

Well you — I got to say that we cannot and could not take this case as though it would request for declaratory judgment?

Archibald Cox, Jr.:

That’s right.

And there are two – but the declaratory judgment has injunction —

Tom C. Clark:

It is no longer existence as Justice Black have stated so there’s no injunction.

Archibald Cox, Jr.:

That’s true.

Tom C. Clark:

I assume that if your adversary has to deal with that technical problem with the existence of an injunction, you’d be glad to waive this injunction, why can’t you treat this as a declaratory judgment —

Archibald Cox, Jr.:

But if that is a point we raised, I would — as I said about a moment ago, I would still argue that this was not an appropriate case.

Tom C. Clark:

Well I think as far as I’m concerned, I think you ought to argue on that basis and argue why it wouldn’t be appropriate that into (Voice Overlap)

Archibald Cox, Jr.:

I think I’m really getting to that direction.

Tom C. Clark:

Alright.

Archibald Cox, Jr.:

At —

[Inaudible]

Archibald Cox, Jr.:

I’m not suggesting that the Court was without jurisdiction in the sense that it would have no jurisdiction over the subject matter, or no jurisdiction over the part.

I think the argument really comes to that it’s an inappropriate instance for a court to intervene that —

[Inaudible]

Archibald Cox, Jr.:

No, I think the situation has — is different and what really concerns me the most about this is the rule that’s announced below.

If this Court for example to be very frankly to disapprove that rule as — to make plan that it didn’t agree with it, I would have no objection to the Court going on.

I’d welcome there going on and dealing with the merits.

I think they’d have the power to do it.

William J. Brennan, Jr.:

[Inaudible] concerned which suggests the courts will not allow actions of this kind, the leads of the enactments of this kind but rather let the statute be enforced in the manner that it’s set up, isn’t that really what you’re coming to?

Archibald Cox, Jr.:

That’s — thereby our argument is precisely.

I was tried first to state the absence — utter absence of need, on the party —

Byron R. White:

Let’s assume that he has the real thrust — a thrust of the declaratory judgment.

Archibald Cox, Jr.:

I don’t understand that one is entitled to a declaratory judgment, whatever he wants.

I think the courts have issued — exercised a great deal of discretion as to when it’s appropriate to enter a declaratory judgment.

Hugo L. Black:

[Inaudible] before this Court for the first time where you pointed out this morning it’s of utmost public importance of this question would be settled and where he stands in running — it’s appropriate — it’s a very different thing once the law has settled down on the statute assuming when — then you are plagued with all kinds of suits that raise in substantial questions, then you might have raised different situations and does it follow that because a declaratory judgment would be permissible at this threshold stage of the statute that it would be permissible in all cases once the validity of the statute if you prevail on this case is sustained.

Archibald Cox, Jr.:

I think if I might have just a minute to state what I do think that I would answer a great many of these questions.

[Inaudible]

Archibald Cox, Jr.:

I think I’ll come to your point.

I’m attempting to go at it directly because there’s really no disagreement between us, Mr. Justice as I think you will see.

The situation here as Mr. Justice Black said a moment ago is one in which all the appellees are asking is to enjoin the government from someday bringing a lawsuit against them, if it chooses to do so.

There is no — I’ll point out several things.

First, that the statute contains no provision for damages, no provision for criminal prosecution, no provision for criminal or civil penalty and I tried to emphasize in my discussion of the statute this morning that it is limited in all cases to preventive relief.

Second, I point out that the appellees now are suffering no injury or loss of any kind.

This is not a case where the statute at its operation injures their business as did the zoning law in Euclid against Ambler or the School Law in Pierce against Society of Sisters because it choose the market or discourages customers.

They don’t complain that any customers are leaving them now and so far as we know, they’re going on without suffering any injury.

The third I would emphasize as was suggested by Mr. Justice Brennan here that this is a statute which shows a good deal of discrimination in what suits we may bring and what suits we may not bring.

It may well be that we would pursue some other course to secure compliance in this case or in other cases.

Fourth —

Hugo L. Black:

[Inaudible] sure that he wants to?

Archibald Cox, Jr.:

The way the injunction or for that matter, the declaration won’t affect the private individual.

Archibald Cox, Jr.:

He could go ahead and bring it again, bring his own suit, the first private suit, if it went against the private individual would have I suppose some effect as a precedent, just as much effect as the precedent I take it as the first suit against the Attorney General would have and no more.

But I take it finally that the expenses of defending an action brought by the Attorney General are no greater than the expenses of prosecuting an action against him.

Indeed, I should suppose that there would be somewhat less.

So that here, what we have is simply no occasion for picking a quarrel with us.

Well, it maybe said it doesn’t hurt the government.

Let it go ahead and learn to defend the case.

It seems to me there is three things that are involved.

In the first place, it is an established principle that a court will not unnecessarily decide constitutional questions.

That was a principle, the importance of which became very clear during the 1930 where the number of lower courts by holding acts of Congress unconstitutional delayed and interfered with the administration of important laws, postponed their effectiveness for two or three years while the issue was being litigated.

This is of the utmost importance under many statutes.

I take it would be under this statute where tremendously important to be part of it is achieving a voluntary accommodation and adjustment to the main and the entertaining of suits to declare the act unconstitutional without any reason increases the chance that it will be so held unconstitutional.

Now I suppose that reason at this stage, Mr. Justice Black, hardly comes into play.

Indeed at this stage, I suppose it maybe more important that the Court face the issue and I couldn’t deny that.

The second consideration is that the determination of what case is to litigant – to litigate is an important part of the administration of the law and the administration of justice and under this statute as Justice Brennan suggested, there are alternative ways provided of going at the question.

We aren’t directed to litigate every case.

We can’t afford to litigate every case as big as the government is and it’s important that the ones we litigate be those which we think are most suited for litigation in the sense that they will do most to promote universal compliance for the statute.

Third, I confess I can’t see anyway except by drawing a somewhat arbitrary line in terms of appropriateness for saying that this bill was correctly entertained by the District Court and entertaining any other bill by anybody else who says that the statute affects him or entertaining a similar bill by any [Inaudible] and challenging it on constitutional grounds.

Indeed, I don’t know why it should stop there.

Why shouldn’t it be declaratory judgment actions to find out whether the Sherman Act applies to a particular set of facts and thus opening the door wide.

Now as I suggested a moment ago, Mr. Justice Black, those considerations apply to the general rule, to the — they show I argue for the wrongness of what the District Court did.

When the case is here, I should agree that the situation has very radically changed.

I don’t think the argument I make applies with the same force to this Court.

I had only that I do what that rule – [Attempt to Laughter] I do ask this Court to disapprove that principle somewhat as you’ve indicated a moment ago.

Now I’d like to go on to the merits of the case taking it that certainly they must be argued and submit that issue as I describe it.

On the merits, the only issue is the constitutionality of Section 201 as applied to restaurants selling food which has passed through the channels of Interstate commerce.

The appellees insist and we agree that Section 201 applies to its restaurant because the $70,000 sales of the Hormel’s meat are a substantial part of the food that it served, and they have passed through Interstate commerce.

The only constitutional issue seriously pressed by the appellees if I understand their brief, is that Title II is not sustainable under the Commerce Clause.

They do say a great deal about the Fifth Amendment Right freely to select ones customers, but then towards the end of that argument, they concede, if I understand them right, that the right is subject to restriction by legislation under the Commerce Clause and of course similar rights have been restricted by legislation under the Commerce Clause over and over again.

In the Heart of Atlanta case, now I’m coming to the Commerce Clause, I developed or sought to develop both the general principle that we rely on and the fact sustaining the statute as applied to hotels and motels.

The legal principle on which we rely here is the same one.

Archibald Cox, Jr.:

The old and familiar rule that Congress may regulate activities which may seem local when separately considered if their regulation is an appropriate way of eliminating potential burdens or obstructions to Interstate commerce.

And the principle applies as their countless cases show to restaurants no less than other retail establishments.

To bring this case within that general principle, we rely upon the testimony before Congress to which I have referred earlier or to some of which I referred earlier.

I’m not going to repeat the description of the general conditions which general business conditions, the decline of business conditions which were shown to result from racial segregation and discrimination and the resulting disputes and disturbances in various communities.

I refer to it that, it’s just as applicable to this case, indeed more applicable to this case than it was to the previous one.

Here, we say coming to restaurants more specifically, that the factual foundation for the congressional conclusion that racial discrimination in a restaurant like the McClung burdens and obstructs Interstate commerce is supported by two lines of analysis.

First, it results from the effective demonstrations against segregation, second, it results from the artificial narrowing of the consumer market by the refusal to sell a large class in many communities of perspective patronage.

Whether — where a restaurant serves food received from Interstate commerce either directly or indirectly, any dispute involving that establishment which causes it to close or which reduces its patronage necessarily diminishes its purchases and thus diminishes the flow of goods into the state to meets its demand.

Arthur J. Goldberg:

[Inaudible]

Archibald Cox, Jr.:

Well I think that the chances are very, very great that it would distort the flow even if it didn’t cut down the total amount and that I think it does as much a interference with the free flow of goods of commerce as cutting down the total amount.

Arthur J. Goldberg:

[Inaudible]

Archibald Cox, Jr.:

Yes.

It’s much as in the case of motion picture theaters in the Sherman Act or labor disputes at various restaurants.

So I think the difference is in the theory.

I spoke earlier of the general effect of these disturbances upon business condition and the shipment of goods in other state — from other states.

The general tendency of course, could be expected to apply to the particular instance.

Indeed since discrimination in place is a public accommodation is the focal point of most of the disturbances of what would expect the interference with commerce there to be the greatest or at least the Congress could so [Inaudible].

This Court of course also knows something about the effect of segregation in restaurants upon their business and thus on the shipment of goods too.

At least two of the sitting cases show that the restaurant was closed for a period after the demonstration took place.

During the 1963 demonstrations against restaurants and lunch counters, there were at least 14 states ranging from Florida to the Carolinas — from California to the Carolinas and from Delaware to Florida in which there were disturbances at restaurants and lunch counters.

Taking North Carolina alone, there were demonstrations in Chapel Hill, Done, Goreme involving 14,000 arrests, so one can imagine the effect upon the restaurants; Goldsboro, Greensboro, Williamstown, Wilmington, and Winston-Salem.

The effect of the disturbance upon the restaurant and so upon its purchases would seem to me to be precisely analogous of the effect of the disturbance depending upon the labor dispute.

It adds to that of course, the application of the commerce power as often been sustained.

Now there’s a second and still more direct link between racial discrimination in restaurants and Interstate commerce which is caused by the artificial narrowing of the consumer market resulting from the exclusion of bigger patronage.

Artificial constriction of the market itself would result in a lessened volume of business, a lower volume of purchases or perhaps in additional restaurants not being started and thus would affect the flow of goods.

Senator Magnuson on the floor of the Senate had summarized this point after he had heard the testimony before the Senate Commerce Committee of which he is chairman.

If these establishments narrow their potential markets by artificially restricting their patrons to non-Negroes, the volume of sales therefore the volume of interstate purchases will be less although the demand maybe partly filled by other establishments that do not discriminate, the effect will be substantial where segregation is practiced on a large scale.

The economic impact is dealt into Interstate commerce.

The supporting evidence is referred to in our brief.

I’m not going to take time to summarize it but I do particularly want to call the Court’s attention to page 70 where appendix — page 70 Appendix B of the Atlanta brief.

Archibald Cox, Jr.:

For there, we have set forth in a table that you can study later, the evidence showing that apparently as a result of discrimination, the amount of expenditures by Southern Negroes in communities where segregation is practiced, is much less per capita, even after adjustments are made for differences in income, that is true in the areas where segregation is less.

Now as I understand it, the appellees argument is considerably different from the argument that was made in the Atlanta case or perhaps because they have a restaurant to deal with rather than a motel, but I take it that they say essentially this.

That the power of Congress to regulate local activities affecting commerce is not as broad as the power to regulate commerce, but is confined to the regulation of activity that do, in fact, create burdens or obstructions whereas you could regulate commerce itself for any reason.

But you come to regulate the activities affecting commerce.

It must be for the purpose of fostering or promoting it and they say you can’t regulate a man in all his activities just because he has received goods in commerce.

Potter Stewart:

You would agree with that later, wouldn’t you?

Archibald Cox, Jr.:

We said — for the purposes of this in all his activity, yes and I’m willing to go a little bit farther.

I’m willing to accept his argument up to that point if I understand it right, arguendo for the purposes of this case.

We have suggested in our brief in a footnote that parts of it are inconsistent with the United States to get Sullivan and the Mandel case, but I don’t intend to dwell on that point.

And up to this point, really, we marched along hand in hand.

Then the appellee’s argument, as I go on, says that the present statute was not conceived as a measurement, we’re dealing with burdens and obstructions to Interstate commerce, but rather it’s an effort to solve what was considered to be a social problem.

That is the appellees say, that it’s shown the appellee is saying by the absence of any formal recitals which they have said distinguishes the National Labor Relations Act or the Fair Labor Standards Act and the agricultural legislation, and also by from — by the absence of any provision for a specific finding in every specific case as to the effect of the discrimination on the Interstate commerce.

Then they apparently go on and assert that to the extent that the statute declares there is an interrelationship between discrimination in commerce, but that’s a arbitrary presumption, invalid because contrary to common experience.

Now let me if I may deal with the last point first to work backwards in a sense because I think the whole argument unravels when you note the last point particularly.

And I call the Court’s attention because I want to deal with this very precisely to the bottom of page 20 of the appellee’s mimeograph brief.

There they say, we’ve been unable to find in the legislative history, that Congress gave any consideration whatever to or even had any testimony bearing upon an affect on commerce being generated by a restaurant serving in food which has moved in commerce.

In the last sentence, aside from that however, it is clear that the mere fact standing alone, mere fact standing alone, that a restaurant serves food which has at some time in the past across the state line, would not in every case, necessarily justify the conclusion that its racial policy would have an actual effect on commerce.

Now there are two faults in that argument which seem to me really runs through the entire brief.

The first is this.

There is no requirement that it’d be shown that the activities that Congress regulates under the Commerce Clause would, in every case, necessarily affect interstate commerce.

As Chief Justice Marshall held back in McClung – Maryland, the word necessary doesn’t mean absolutely essential, a compelled relationship in every instance.

It means not indispensable, appropriate, useful, incidental,and adapt into the end.

And Congress certainly could reach those local activities which are a more or less constant practice and create as Chief Justice Taft said in Stanford and Wallace a threat of injury to commerce.

He said there, whatever is a more or less constant practice that creates a threat of injury to commerce is within the power of Congress to deal with.

In the Labor Board cases, Chief Justice Hughes pointed out simply to the evidence that refusals to bargain and discrimination were a prolific source of labor disputes affecting interstate commerce.

And of course, it doesn’t have to be shown in the Safety Appliance Act that the omission of a safety appliance from every car moving in intrastate commerce would necessarily affect interstate commerce or in that the issuance of a forged warehouse receipt would in every case necessarily affect interstate commerce.

We’re dealing with practical things here with tendency, with likelihoods, with risks, and that’s what all the Commerce Clause cases dealing with affecting commerce that dealt with for many, many years.

Now the second fault in the sentence at the bottom of page 20, in appellee’s brief, exemplifies what I think is another error that runs through the argument.

It attempts to focus attention simply upon the past movement of the goods.

It says we must look at that standing alone and the fact that goods have in the past moved across state lines, doesn’t show that racial segregation in the future affect commerce, but of course, that isn’t what Congress was concerned with and the statute makes this quite plain.

Archibald Cox, Jr.:

Indeed the statute doesn’t even speak in the past tense.

It speaks of someone who serves or offers to serve which has both, but it gets the current serves or offers to serve and why is that important because the fact that a substantial portion that the food — of the food that he serves or offers to serve has moved in interstate commerce indicates that if nothing happens to his business, there is every probability that in the future, he will continue to acquire a substantial portion of his good from out of state.

Potter Stewart:

Suppose that this restaurant could get out from under the statute by simply being very careful to buy food which was meat which came from local animals, locally slaughtered [Inaudible]

Archibald Cox, Jr.:

As a matter of statutory interpretation, then the statute would not apply to it.

That’s correct.

Potter Stewart:

Certainly that’s part of the statute.

Archibald Cox, Jr.:

Certainly this —

Potter Stewart:

It might be —

Archibald Cox, Jr.:

And, Your Honors, right, and I spoke too generally.

I’m still focusing on the Commerce Clause.

It could because here you see, Congress has not, as it might have done, so I don’t argue, justify the statute, it might, I think, have reached everyone on the theory that the general effect of business conditions that I’ve described was enough, but it went farther.

It’s said we don’t want to go that far in the local affairs.

We got to require an addition that each particular establishment have some link to commerce.

But what I’m — the point I’m pressing is that the past, the fact that the goods have come in from out of state is important with respect to what is likely to happen in the future.

Well that is its irrelevant.

The Congress was concerned or certainly could have been concerned on the basis of the testimony with the effect of racial segregation now upon the future movement of goods in interstate commerce and it’s the threatened disruption of that future movement that the statute is reasonably adopted to protecting, preventing future disruption.

Now the appellee’s answer to this apparently is, “well Congress didn’t say so.”

There are no express findings that it was concerned with the effect of the future movement of commerce.

We have two answers, both we think independently sufficient to that point.

In the first place, we think that Congress did putting effectively, indicate that it was concerned with this.

It found in Section 201 (c) that the operations of an establishment affect commerce within the meaning of this Title if it serves or offers to serve the food that we have referred to, but what is the operations of the restaurant affect commerce mean.

I take it that that needs all its operations, including who it chooses to serve food to it or who it doesn’t choose to serve food to and it says that that part of the operations like the others affect commerce where this has to take place or at least I submit that they had some entirely reasonable reading and the statute should be read, of course, to put its best life for constitutional purposes rather than its words.

Now second, we say that the finding is quite unnecessary.

The Court spoke upon this very point in the Carolene Products case.

I won’t — I’ve quoted it in my brief, but it said very clearly that there was even in the absence of findings supporting the legislative judgment that the Court would presume the existence of those facts.

That principle is certainly applicable here.

The fact —

William J. Brennan, Jr.:

[Inaudible] were amended out of the field adjustment, may we treat them as findings?

Archibald Cox, Jr.:

I don’t think that I would argue that you should treat them as findings or draw any significance from it at all.

There was a discussion about whether Congress should or shouldn’t make finding.

Archibald Cox, Jr.:

There was a discussion about what constitutional ground it should rely on, there is also a feeling now on Capital Hill that Congress should give up the practice of the authorities and never make findings, leaving it entirely to be handled as Mr. Justice Stone suggested in Carolene Products case.

So I don’t think Your Honors, would either be warded in relying on the previous finding or in drawing any inference to that.

William J. Brennan, Jr.:

Well should we completely ignore them?

Archibald Cox, Jr.:

I would ignore them.

Well, I would ignore them except to this extent.

I think that you certainly can and must take account of the fact that Congress was or at least many people in Congress were concerned with the commercial problem as whether as the other aspect of this problem and that therefore, the presumption that Congress acted on this theory is not an unreasonable one.

When you’ve gone that far, I think that is far as you have to go because of course the fatal error here in the appellee’s argument is that they are asking the Court to presume that Congress acted on a vulnerable constitutional theory and then they argue that that theory is invalid but this just turns the world upside down to the extent that the Court will look into — on what theory the Congress acted at all.

It will presume that the Congress did its duty and that each Congress couldn’t just like this part, they do it best to defend and uphold the Constitution.

I hardly need authorities but the authorities on that point again were collected in my brief.

To sustain your effective commerce argument in this case as distinguished in the first case, do you have to — do you rely simply on the fact that the findings or the evidence in the — in the legislative record shows an effect on commerce in relation to the purchase of interstate, use of interstate food or do you go further than that and rely on any effect on commerce?

Archibald Cox, Jr.:

Well the only —

Coming to purchase because they don’t like the city that —

Archibald Cox, Jr.:

Well I could but I think that I’d effect, rely on both.

I ask the Court in — I ask the Court to bear it in mind that the Congress in weighing the effect of this particular link was free to take into account the fact that this is an aspect of a much larger problem that I described.

I don’t like to say that I stand on either one without the other one.

I’ve got both.

I wouldn’t take that —

[Inaudible]

Archibald Cox, Jr.:

No, oh no.

Certainly not limited the first and I should point out so that there’s no misunderstanding.

We have suggested a quite different theory that I’ve not argued earlier and which we haven’t argued in our brief, that is that on the basis of the Sullivan case that Congress may regulate what a retailer does with goods that he has received in interstate commerce.

[Inaudible]

Archibald Cox, Jr.:

Well —

[Inaudible]

Archibald Cox, Jr.:

Yes, that is the appeal.

[Inaudible]

Archibald Cox, Jr.:

Well as I say, I’m not pressing this on the Court.

It does seem to me that there is a difference between saying that a man shall not beat his wife to making that a federal crime because he strike cigarettes that came from — well he smokes cigarettes that comes from North Carolina, and saying that one shall not use food when he’s gotten in the interstate commerce in order to perpetuate a practice that the Congress regards as damaging (Voice Overlap)

William J. Brennan, Jr.:

It’s relevant to the Sullivan — Sullivan then on that —

Archibald Cox, Jr.:

Yes.

Archibald Cox, Jr.:

But I’m — I — again, well I don’t want the part forgotten.

I do want to say that I’m — I’m not urging it now.

It’s a quite different point from the one that I have been — (Voice Overlap)

William J. Brennan, Jr.:

May I go back to Mr. Justice Harlan’s question a minute.

You’re not making any different argument as to what I characterize as general backdrop kind of business of interruption.

In this case and you did in the —

Archibald Cox, Jr.:

I was thinking exactly the same.

I was thinking exactly the same and I rely on it exactly to the same extent.

Potter Stewart:

But do you think it could be made a federal offense for a man to strike his wife with a baseball bat and report it to another state?

Archibald Cox, Jr.:

I would think Sullivan would go a long way to sustain that, yes.

I don’t think that has to be decided here but I think that Sullivan would seem to me to sustain that.

Again, I — I would — I draw out the reason I insist on the difference Mr. Justice Stewart.

It seems to me that this statute can be upheld under the Commerce Clause, under what I have said is existing principles without any extension of those principles or any truly novel application.

I think that this hypothetical statute you post and the use of the Sullivan case along the theory I indicate would involve maybe an extension or at least a picking up of the little used theory and I think that it would be a mistake for me to picture my case or for the Court to picture its decision.

Potter Stewart:

I think it’s quite unnecessary in the Court.

Archibald Cox, Jr.:

I think it’s quite unnecessary as that it is — this is just the kind of case where it is wise to keep within the established principles, the familiar roles that really haven’t been questioned for years and go back as I say to Chief Justice Marshall.

Now the other argument, or sub argument, that goes with appellees’ point is that here the statute provides for no specific factual inquiries that the discrimination in this restaurant affects or it is likely to affect the movement of goods in interstate commerce.

But there’s nothing novel in that.

Congress over and over again has made determinations for itself in the Darby Lumber case.

Mr. Chief Justice Stone pointed this out and said that sometimes Congress provides for an inquiry by the administrative agency.

Sometimes it provides for the inquiry by the courts.

Sometimes it makes its own determination and that where it makes its own determination, the only question going back to the passage Mr. Justice Black was pointing to this morning is whether the end is within the power of Congress and whether this is a means of reasonably adapted to achieving that end.

Now as a matter of fact, what is done in this statute is identical with what was done in the Fair Labor Standards Act at the very argument that was made here was pressed in the Fair Labor Standards Act and rejected.

Congress determined for itself in the Fair Labor Standards Act that the payment of substandard goods — wages in establishments producing goods for interstate commerce did tend to burden and obstruct commerce.

And it left open for judicial inquiry only the question whether the particular establishment produced goods for interstate commerce.

And so here, commerce determined for itself that the practice of segregation in restaurants that depend on interstate commerce for their purchases which is the affect of the past motive will tend to burden and obstruct commerce.

It left open for judicial inquiry the question whether they do depend on commerce for their purchase so that the parallel I submit is complete.

As a matter of fact, the practice under the National Labor Relations Act is exactly the same.

The National Labor Relations Board never inquires whether a particular discriminatory discharge or a particular refusal to bargain may burden or obstruct interstate commerce.

It inquires as we all know, of what is the volume of goods of that establishment ships out of the State or imports into the State.

Archibald Cox, Jr.:

And if the necessary volume is made out, then the Board takes jurisdiction.

Indeed the Reliance Fuel case decided here two terms ago, reversed a rule against the Second Circuit which it set the case back to the Board to find out whether the unfair labor practices in the particular establishment affected commerce.

And said it was enough to prove that that establishment had a substantial inflow of goods, that was a retail establishment like this.

Whether the Board does have to — or because it takes Congress in effect decided the question of the effect of the unfair labor practices called Labor Relations in the particular establishment or whether it does, it is a matter of its own laying down a general rule really is immaterial because if the Board can do it, then so can the Congress.

And in this connection, I should perhaps say, of course it’s immaterial whether if all the other restaurants of Birmingham conform to the requirements of the statute that nonconformance by this particular restaurant would not be very important.

That point is resolved over and over again in cases under the — by really everyone of these statutes including Wickard and Filburn, United States and Darby, and the cases that are dealing with the National Labor Relations Act.

Arthur J. Goldberg:

[Inaudible]

Archibald Cox, Jr.:

I don’t think my argument really goes that far.

I think that was the point I was trying to make to Mr. Justice Stewart earlier.

I said perhaps I could rely on that, but the Congress didn’t go that far.

Congress also said, not only, it not also had this evidence of general conditions in front of it, but it had evidence that this particular establishment made its own individual contribution to the flow of goods in commerce so that this particular establishment is tied to its trickle of goods that will be coming in in the future, trickle that would be enlarged.

The effect might be enlarged and Congress could find would be enlarged, if the effect of artificially narrowing the market were removed at a trickle which might be damned up and stopped the movement of the flow of goods if a dispute occurred as a result of it.

And I think, Mr. Justice, I rely on the general condition for choosing, one to make the obvious point that was made in the Reliance Fuel case that this trickle is representative of thousands, hundreds of thousands of similar trickles and that together they are a great stream, a national economic problem as witness has testified before the commission.

And second, that the general description shows that these trickles and these disputes are not unrelated among themselves and I think Congress was entitled to take that into account in judging its action.

I would like to if I may save the rest of my time for rebuttal.

Earl Warren:

Mr. Smith.

Robert McDavid Smith:

Mr. Chief Justice, and may it please the Court.

In view of the manner in which these cases have been combined for argument and the fact that Court has heard several hours now discussions of the structure of the Civil Rights Act and Title II, with the Court’s permission, we are going to depart from the planned order of our argument and say first what we do not contend and what we do contend so as to bring the argument that follows into a better focus.

We do not have any disagreement with the Solicitor General as to Congress having a very broad power to regulate local activities wholly within a state where they bear a close and substantial relationship to interstate commerce.

This point has been made in every brief of memorandum that we have filed in this case, nor do we contend that Congress may not, under the Commerce Clause, deal with the question of racial discrimination and segregation in certain places of public accommodation including certainly some restaurants.

What we do contend is that this Act by use of the means that there was employed and by the breadth of the Act has brought within the scope of coverage restaurants over which Congress does not have any demonstrated or demonstrable authority under the Commerce Clause and it must therefore, be held unconstitutional certainly as applied to these appellees whose factual situation in and of itself shows a typical example of a restaurant that it cannot constitutionally apply to.

Arthur J. Goldberg:

Mr. Smith [Inaudible]

Robert McDavid Smith:

Your Honor, may I answer that and I do not mean to be evasive.

That question is not presented in our case.

It is not argued in our case by the government.

We have some doubts as to the breadth of the language in that part of the statute that is, serves all office to serve and never quite explains who is an interstate traveler, but subject to those doubts, we would not question that Congress would have the power to regulate certain restaurants that are related directly to the instrumentalities of commerce.

As a matter of fact, in the Senate bill, I believe, the language was somewhat different and from our standpoint considerably better in limiting it more than this fellow — this — this offering to serve device does.

We don’t make that point and we concede that with proper language, they could do that.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

Well, Your Honor, I’m in something in a disadvantage of trying to reply specifically to an argument in that brief because we wrote Mr. Greenberg and told him that we would not consent to the filing of the brief before today simply because of the burden getting this case ready and briefed in, in eight days.

I have not thoroughly read the brief however we deal with it to some extent in our present brief and we’d be glad to deal with it more.

Certainly on this record, there — there is no way on earth to conclude that any interstate traveler has ever been served in this restaurant and the court below on substantial evidence found — the court found that there is no offer to serve.

So if we think on this record, we just don’t have a case to get deeply into that.

Now it is not our purpose, may it please the Court, to try to urge upon this Court any restrictions upon the Commerce Clause or any retrenchment of position that has been maintained in other cases.

What we see is that the deciding cases in the statutory precedents that these proponents of this Act relied upon are not precedents and there are no authorities upon which to find that this Act is constitutional.

We don’t argue it on the basis of the Tenth and the Ninth Amendments.

We think it’s a truism that the commerce acted beyond its power under the Commerce Clause certainly it violates the Tenth Amendment.

Certainly, we have rights under the Fifth Amendment but we are constrained to concede that those rights are subject to a considerable amount of influence at least under the Commerce Clause.

We think the case must be decided under the Commerce Clause and in view of the questions and discussions that have been held in the past several hours, we would like to confine our argument initially at least primarily to the kinds of things that were asked about.

[Inaudible]

Robert McDavid Smith:

Well, I think yes Mr. —

Byron R. White:

Are you saying that the fact that invalidly it did apply to any other reference of —

Robert McDavid Smith:

We take the position, Mr. Justice White that this Act as it is drawn with respect to the food test applies to restaurants to which it may not validly be applied and is therefore on that test unconstitutional.

Byron R. White:

And yours is one of them.

Robert McDavid Smith:

And ours is one of them that happen to illustrate.

Byron R. White:

But there might be other reference.

Robert McDavid Smith:

Might be other reference.

Byron R. White:

The reference that you can purchase more food or —

Robert McDavid Smith:

No sir.

I don’t think that any — I don’t think that the Act could be used on this basis to apply to any restaurant.

That happens to be my opinion.

I certainly in this — on this record, we don’t take on that much of an argument.

Byron R. White:

And I think this is — if you can find theory in your argument I guess exactly that’s still —

Robert McDavid Smith:

Yes sir.

Byron R. White:

Are you saying that even if Congress reach a restaurant based solely on its purchases in the interstate commerce, even if that was so, nevertheless Congress cannot necessarily conclude that discrimination in that restaurant affect commerce.

Are you making a separate [Inaudible]

Robert McDavid Smith:

We are making, we are making that point — it maybe made in a slightly different context.

We say first — the Congress have to somehow determine that a policy of racial exclusion or selection in a restaurant would have an effect on interstate commerce.

Robert McDavid Smith:

They had defined that.

William J. Brennan, Jr.:

You mean by findings?

Robert McDavid Smith:

We don’t say, Your Honor that they have to be expressed in explicit findings.

We have made the point throughout this case that the fact that they did not make explicit findings is highly significant.

William J. Brennan, Jr.:

Well, findings either in the Congress makes all of that as in the case of the National Labor Relations Act that commits on agency.

Robert McDavid Smith:

Yes sir.

Byron R. White:

But that’s your basic point, your base point?

Robert McDavid Smith:

That is part of our basic point, but somewhere, this has to be determined.

William J. Brennan, Jr.:

Yes.

Robert McDavid Smith:

And as I understand —

Byron R. White:

The Congress has declared in the Act that — that any restaurant that makes certain kinds of purchases — its operations do affect commerce.

It’s declared that — you object to that as a quite old restaurant or at any restaurant.

Robert McDavid Smith:

A question that they have made that in the sense of it — of it being a necessarily implied or even a permissively implied finding on the board of Congress, they have said that, may it please —

Byron R. White:

They have said that in the words that they — the operations in the establishment of (Voice Overlap)

Robert McDavid Smith:

They haven’t said as clearly as Your Honor has said it here and that’s one of our points.

Byron R. White:

But one thing they haven’t said in the Act is that — in one of these kinds of — in this kind of an establishment, discrimination would affect commerce.

Robert McDavid Smith:

They have not said that.

Byron R. White:

But are you saying — is this part of your argument?

Robert McDavid Smith:

Yes sir, this is a part of our argument.

It’s certainly a part of our argument.

We think that what Congress did when they were faced with the President’s message and with the other request that there be consideration given to a broad public accommodations law of this time was to cast about, to find some constitutional basis for it.

We think that legislative history of nothing else shows a considerable amount of doubt as to the proper constitutional basis.

We know that respectable authorities, eminent attorneys, and professors, and judges urge the Fourteenth Amendment and some the Thirteenth Amendment, and then others, the Commerce Clause.

We know that this Act embraces not just the Commerce Clause, but the Fourteenth Amendment to the extent that it refers in Section 201 (2) (d) to state action.

It’s rather unusual to have a Commerce Clause statute combine with a — a statute under another section of the constitutional act of Fourteenth Amendment.

And it makes it even more difficult to say that Congress made the specific finding or determination that Your Honor just suggested because to the extent that they apply the statute to these restaurants that are in those sense using interstate food but they have state action in some way involved, certainly the finding doesn’t apply.

We think that what they did was find two separate lines of authority and they’ve — legislative history is replete with evidence of this.

First they had Wickard versus Filburn.

They had that and it’d been talked about for years.

Articles had been written about it, as soon as they’ve been called a judicial auditing which was correct, that it was an unusual factual situation legally it was correct, it was an auditing.

Robert McDavid Smith:

They had that, but then they had the Labor Board at cases and they can’t be any questions that they put their primary Reliance in Congress on the Labor Board cases and the Labor Board, the National Labor Relations Act, of course, picked up and use the terms affecting commerce.

Every question had to be found to affect commerce.

That is — it was a question of representation affecting commerce or an unfair labor practice affecting commerce.

And with all due respect for the Solicitor General is to what the Board actually does, they actually make an inference finally in most cases but it’s not a summit, through that the Board does not make the inquiry.

I have here a copy of the form issued by the National Labor Relations Board, our Form 501 which is the charge that one starts a case within the National Labor Relations Board and the basis of the charge is that the unfair labor practices charged are unfair labor practices affecting commerce within the meaning of the Act.

They’ve determinate it in every case.

Now —

William J. Brennan, Jr.:

[Inaudible] Mr. Smith, is that — I’m getting back to the first Act before, I just want to be clear about it.

Robert McDavid Smith:

Yes, Your Honor.

William J. Brennan, Jr.:

I gathered, that the facts as you see them in the statute constitutionally at least one of them of those that either the statute didn’t say that every restaurant has substantial amount of the loose food that comes from out of state where discrimination is found affects commerce or have said that in any case where a substantial amount of food comes out of the state and the charges of discrimination practices by that question affects commerce committed the decision ad hoc in that case to some federal agencies, is that right?

Robert McDavid Smith:

I’m not sure that I entirely follow (Voice Overlap)

William J. Brennan, Jr.:

Well I – I think I —

Robert McDavid Smith:

I think I understand it.

I think the answer is yes, that they have either found — and we don’t say that they have to be spelled out findings in a preamble but in some way the Act has to unequivocally show this is what they determined, that these local activities as was true in Wickard versus Filburn, these local activities have got to be controlled, they’re not commerce and prima facie, we have no control —

William J. Brennan, Jr.:

No — and those lawful activities we’re talking about here discrimination and choices specifically, the discrimination and choice of customer, isn’t it?

Robert McDavid Smith:

Selection of customer.

William J. Brennan, Jr.:

And that’s a discriminate — discriminatory selection of customers in any restaurant the substantial amount of loose food comes from other state affects commerce either that kind of finding or whatever form it is by the Congress itself or the commission by the Congress to some agency where they are making of that finding has a particular restaurants, is that what your position is?

Robert McDavid Smith:

Well, our position is, that the Act does neither of those things and it must be one or the other.

William J. Brennan, Jr.:

Well, that’s what I’m trying to get.

Do you feel that has to be one or the other?

Robert McDavid Smith:

Yes sir.

Byron R. White:

What about the courts?

Robert McDavid Smith:

Well, the courts can certainly be used to determine whether something affects commerce, may please Your Honor, but the courts are not permitted to do that here.

In this case, if the — because the Court is required to find an effect on the commerce if in the individual case, food has moved in the past across state lines.

Hugo L. Black:

Is that your [Inaudible]

Robert McDavid Smith:

Yes sir, but it’s post in the past.

May I illustrate why I think this past tense is rather significant, may it please the Court.

I think it is rather significant because of the statute itself.

In the section that we are talking about is to restaurants, and bear in mind, may it please the Court, I’m not arguing the hotel case or picture showcase, or anything else, just a restaurant case.

Restaurants are treated separately in this act, it test as separate and the whole legislative background is — is distinguishable as I would like to be able to show in a few minutes.

Robert McDavid Smith:

But in the case of restaurants, they have put it in these terms — that the Act — that the operations of a restaurant affect commerce.

If the food which it serves has moved in commerce.

Once moved in commerce, it may never move again and there may never be anymore food.

Now, in Section 3 which deals with motion pictures and theaters, these establishments are said to affect commerce, if it customarily presents films, performances, and so forth which moved in commerce.

Now that’s a current movement.

The man who’s operating the picture show is now regularly and customarily showing films that reaching through state lines, across state lines, an entirely different thing from the factual situation and the restaurant situation.

For example, suppose we had a restaurant,if I may use a hypothetical, I have no exact case, but if we had restaurant that let’s say in the state of North Carolina and for many years, it has featured as its main specialty Virginia Ham and the proprietor has grown everything else that he serves in a truck garden in his backyard.

Now, some prior to July of 1964, while there is an entire smoke house full of ham supply for a year, he stops buying any further hams from Virginia.

He buys from that point on only North Carolina hams.

If that man continued to serve, the Virginia hams in his North Carolina restaurant, it would come squarely under the statute.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

I’m saying, that this is one of the issues.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

I’m saying may it please Your Honor and don’t mean the equivocal as the way we put it, that when you view this as a legislative presumption and that’s what it is, a conclusive presumption that this affects commerce, that certainly, you can illustrate that it — that the presumption would not be valid in many instances, and if it is —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

The trial court —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

I think it says that.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

I think the statute says that.

I don’t say that it’s — I don’t consider it says that in the sense, it makes that finding and that shows an effect on commerce.

That’s what the statute says, yes sir.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Yes sir.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

And only on that account.

Hugo L. Black:

What would you do with [Inaudible]

Robert McDavid Smith:

Your Honor, with respect to the National Labor Relations Board cases first, we know of no case in the National Labor Relations Board context where there has not been a finding that the particular matter regulated affects commerce in the sense of future commerce prospective interstate commerce.

Hugo L. Black:

Well, but Congress has said that — it’s outlawed without regard if you’re talking about finding what Congress has said that if a man who has food [Inaudible] potential part of which has moved into interstate commerce [Inaudible]

Robert McDavid Smith:

Well, the point that we’re making, may it please the Court, whereas in the Labor Board cases, the attention that has been given to the movement of goods across state lines in reaching the employer in certain cases of which Reliance was one and there are many, many others has always been used as a basis for inferring from a past movement of goods that there would be a future movement of goods to this employer and therefore a strike or any other disturbance at the plant would result in an injury to commerce.

Robert McDavid Smith:

If I may read just a short passage from one of the cases, I think I can illustrate the point that we are trying to make.

In the Denver Building Council case, this Court stated that any widespread application of the practices that they were dealing with there, might well result, future, it might well result in substantially decreasing the influx of materials into Colorado.

In the Brandeis case which has been cited in every memorandum that’s been filed by the Solicitor General or the Department of Justice in this case, the Court stated, “Clearly, if a strike of the employees in the store should lead to the closing of the doors and stop the selling of merchandise, the flow of supplies from outside the State would soon stop.”

The effect that is on commerce would be close and substantial.

I’m saying, may it please Your Honor, that you could have a restaurant under this statute that might never again make any use of any food that crossed state lines and therefore it might not as all affect interstate commerce at all.

William J. Brennan, Jr.:

But, don’t you think such a restaurant insofar as this provision of the statute is concerned, could go in and get an injunction looked it.

Robert McDavid Smith:

No sir, I don’t see how it could because the — the lower court has given no authority here except to apply the definition of affect commerce that has been exclusively set out.

Potter Stewart:

The restaurant (Voice Overlap) and say we do not deserve this in the precedents case.

Robert McDavid Smith:

Yes sir.

Potter Stewart:

And if we go and say, we do not now serve —

Robert McDavid Smith:

Well, I’m assuming the restaurant —

— a substantial portion of which is moved in interstate commerce and the injunction would be lifted insofar as this provision of the statute is concerned?

Robert McDavid Smith:

Well I’m assuming a restaurant that presently serves food that at one time move across state lines.

You see we have — there’s no limit to how far back it may go, may it please Your Honor.

In the senate judiciary committee, the Attorney General testified that this would apply.

Potter Stewart:

I think that North Carolina restaurant once it used up all the hams, the Virginia hams that [Inaudible] and then — from then on I want to buy North Carolina ham, it could go ahead and get the injunction (Voice Overlap)

Robert McDavid Smith:

After it used up the Virginia ham that could, yes sir, that’s correct.

Hugo L. Black:

Do you think that Congress might have found the people can [Inaudible] future but have already put it in there.

If with that power if you’re — you’re on that basis.

Robert McDavid Smith:

I’m afraid I’m enough to making my position clear to the Court, Mr. Justice Black.

I don’t — I’m not talking in terms now of what Congress’ power might have been, just for the purpose of argument let us assume, I don’t think they have this kind of a legislative background but let us assume that they had enough before them just to say that all racial exclusion in restaurants in the whole United States has some kind accumulative effect on commerce and therefore we will proscribe all that.

Hugo L. Black:

As far as I’m concerned that’s really quite a different question.

Robert McDavid Smith:

Well, let’s say that they had done that.

Now, they didn’t do that, they didn’t do it.

Instead, they have purported to apply it only to the restaurants whose operations affect commerce.

Now those words have to mean something and what Congress has said is that in every case, one meaning that has to be attributed to them is, that — a substantial portion of the food they serve once moved in commerce.

I say that in the Labor Board cases, that past movement across state lines in reaching the employer was purely evidentiary.

It was never a matter of law.

The Board was permitted under the substantial evidence rule in all those cases to conclude since last year the employer used materials across state lines, it is reasonable to infer that next year, he might do the same thing and therefore a strike of labor dispute might interrupt the flow.

Arthur J. Goldberg:

Mr. Smith, you’re [Inaudible]

Robert McDavid Smith:

Well of course, the Board could only make it where it was supported by substantial evidence, Your Honor and if you had substantial evidence to the contrary if I may just make one point, then the Board would — would make it in the other way too.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

Well, Your Honor, I don’t mean to be factious in saying this but I wish to repeat, I only have a restaurant case.

I’m only talking about a restaurant.

As far as this case is concerned, if the legislative history doesn’t support whatever they did as to restaurants and surely we should prevail.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

In answering that, Your Honor, may I make a comparison between the two tests, one of them is the travelers test.

I have never contended that there is not enough legislative history to support that test.

Byron R. White:

[Inaudible] that we do have a restaurant where — where the 50% — what the congress has said, every restaurant [Inaudible] presented his customers [Inaudible] travel.

I take it that’s the case where you would say Congress had — have power of the Commerce Clause.

Robert McDavid Smith:

Certainly.

I certainly would have to concede —

Byron R. White:

In that event, what about Congress’ judgment also that — that discrimination in that class of restaurant should be proscribed.

Robert McDavid Smith:

In that particular class, the 50% —

Byron R. White:

Yes.

Robert McDavid Smith:

The interstate travelers.

Byron R. White:

Yes, yes.

Robert McDavid Smith:

I would say that the Congress could easily, in this particular legislative record, have had enough evidence to make that finding.

Byron R. White:

So that once — if you say that Congress has the power to regulate the operations of the resident that Congress could also on this record, reasonably conclude the discrimination in those operations at the commerce.

Robert McDavid Smith:

I think on the interstate traveler approach that is the restaurant located on the big highway that gets the bulk of —

Byron R. White:

But the only relevance of the interstate traveler is just to underpin the power of commerce, that power of Congress to — to control the operation.

Robert McDavid Smith:

Well I must respectfully disagree with you, Your Honor.

I don’t think that’s the only importance.

Congress wrote it into the Act as one of the types of restaurants that would be covered.

Byron R. White:

But I’m talking about one of those kinds of — you agree that Congress has got some power to regulate those restaurants to — in that traveler.

Robert McDavid Smith:

Yes sir.

Byron R. White:

And you would agree that Congress — would you that Congress could therefore regulate discrimination in that category.

Robert McDavid Smith:

Well, I intended to include that in the agreement on the first point.

I think it’s an extension of certain rational of number of cases under the Interstate Commerce Act and I can conceive of having an argument on particular case but certainly, I think there’s some legislative background for concluding that.

But may it please the Court, in reference to the question that was put just a minute ago by Mr. Justice Goldberg, I do not believe that anything in this legislative record that has anything at all to do with the movement of goods across state lines and the impact on that movement because of discrimination.

Robert McDavid Smith:

I can’t find anything in the legislative record in — rather show at time it was available to brief this case, we undertook to find some reference to food moving across state lines and being in some way affected by a racial selection policy, and we are confident that none exist because certainly, Solicitor General would have called our attention to it.

There’s ample evidence in the record that shows that this type of a policy may impede travel where the establishment is on a traveled route, but we suggest that the same is not true as to the food test and it’s not merely a matter of what Congress did undertake to do.

It’s also that they did not have any basis on which to do that, which the Solicitor General claims they did.

Now we don’t think that’s what they really did.

What we really think they were doing was making an equation between this and the National Labor Relations Act.

They were just legislating a presumption that has been evidentiary in those cases.

I think —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

It would necessarily be the common experience of this Court and I’m not prepared to say what experience tells the Court but I [Attempt to Laughter] I certainly don’t thing anything has been submitted that would show that.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Your Honor, may we make it entirely clear.

We are not in any sense urging that Congress does not have great power that the gentlemen that in the Congress that favored this legislation, we’re not entirely conscientious, sincere, and very intelligent Americans.

We just feel that this Act was not enacted in the usual manner at all.

We don’t believe that the most of the members of Congress had any occasion to really study the impact of the Commerce Clause cases.

We can with the legislative history on it, it does exist.

Your Honor put the — hypothetical if we didn’t have any —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Yes sir and certainly, we don’t contend that you have to have legislative findings in all legislation however.

If you do not —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Well in some way, may it please the Court, we think that there must be someway to demonstrate, that the local activity that on its phase is not within Congress’ power under the Commerce Clause comes within that power.

We don’t think that this Court can presume that Congress is always right.

We think, for example that there – well, it’s — it has not been —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

No sir, and we don’t — we don’t urge that.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Well, may it please the Court, we’re not dealing with this in the sense of a police power of a state.

Now in the —

Hugo L. Black:

But the government has to be [Inaudible]

Robert McDavid Smith:

Well, I confess to — Your Honor, that I’m shocked to know that it’s a police power.

Robert McDavid Smith:

I thought it was —

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

Well, in every case that I know of, there has been a relationship to interstate commerce that has been demonstrated in some manner.

The Filburn case is not in point at all or in the Sullivan case.

The local — the regulation of Sullivan was absolutely essential regulation just as the regulation of Filburn was to carry out the main purpose of the Act which was a commercial purpose.

That’s not true in the Civil Rights Act of 1964.

It has no principle interstate commerce purpose.

It’s — the part we are talking about is the — is all that they have.

Now, I don’t know of any other legislation that has taken these local activities that have never been regulated before on any such basis is this under the Commerce Clause, where Congress didn’t make findings.

In the Carolene Products case, may it please Your Honor, as we understand that case, the findings the Court was saying was not necessary — were not related to any affect on commerce.

They were dealing with the apparent finding or conclusion reached by Congress that filled milk was just deleterious and they didn’t make any express finding in this Court, so it’s not necessary, we don’t question that.

But this Court is now looking at this Act which doesn’t say we pass it under the Commerce Clause.

We don’t – it doesn’t say that.

It says it, when it sales affects commerce.

Now if — the question is, since it chooses to use the terms affect commerce, has it been limited to those activities that can be reasonably said to affect commerce, and we think not.

Hugo L. Black:

[Inaudible]

Robert McDavid Smith:

In many cases, it would not be, and those cases that are covered, yes Your Honor.

Hugo L. Black:

$70,000 [Inaudible] is that what you say?

Robert McDavid Smith:

No sir, I don’t say that.

I haven’t got the authority for that.

I think that if the substantial part, I think we concede that is $70,000 out of this particular restaurants to us is substantial.

Potter Stewart:

You concede that the statute covers you by its term?

Robert McDavid Smith:

We and the government concede the statute covers us and that we’re in violation.

Byron R. White:

Well then — I don’t catch up your, that last part of your argument.

Do you say that the purchases of this restaurant involved in this case is from outside the state are substantial?

Robert McDavid Smith:

I’ve never had occasion to take that position, but we’ve never questioned, may it please the Court.

Byron R. White:

Your point is I gather that — that Congress’ power —

Robert McDavid Smith:

Well I don’t think then the question of that is substantial.

Byron R. White:

Congress’ power cannot be rested upon this mere purchasing from outside the state?

Robert McDavid Smith:

We think that Congress’ power cannot be rested on a connection with interstate commerce which is related solely and exclusively to pass movements in commerce, yes sir.

Hugo L. Black:

But you argued, what the Congress had the [Inaudible]

Robert McDavid Smith:

Yes sir.

Hugo L. Black:

And that argument has been made.

Robert McDavid Smith:

We’re not arguing the coming to rest doctrine, may it please the Court, we’re not arguing that.

We want to make that clear in the very beginning.

[Inaudible]

William O. Douglas:

But this was a regular pattern of purchase —

Robert McDavid Smith:

Yes sir, we are talking about burdens on the commerce.

We’re talking about —

William O. Douglas:

Well then, why wasn’t that suggestion made earlier, the appropriate one that — this case should be tried in the regular procedure, and the regular procedures require it in the Act itself.

Robert McDavid Smith:

I’m not sure I follow Your Honor.

William O. Douglas:

Well if the Attorney General — the Solicitor General is arguing that this should be dismissed, this case should be dismissed, maybe this is premature, maybe we don’t know enough about it, maybe we should await a suit by the aggrieved person.

Then it would go to a court, we would have hearings on this point.

Maybe you could prove that your restaurant was — these are isolated purchases that the restaurant was completely out of this —

Robert McDavid Smith:

We couldn’t prove that, Your Honor.

The record clearly shows we’re under the Act.

We’re under the Act.

They concede we’re under the Act.

William O. Douglas:

What do you mean in your brief when you say that — in some way at some point a casual relationship between a particular local activity in interstate commerce must be shown.

Robert McDavid Smith:

We mean, in the statute this must be shown.

William O. Douglas:

Oh!

In the statute?

Robert McDavid Smith:

Yes sir.

We’ve showed, we’ve showed we come under the statute.

I don’t — please don’t let me leave the Court in any doubt about our position.

We are under the statute.

We are not complying whether it does cover —

William O. Douglas:

I thought you —

Robert McDavid Smith:

No sir.

William O. Douglas:

I thought you’ve been adequacy of hearing so on.

Robert McDavid Smith:

No sir, no sir.

We don’t raise that point.

Potter Stewart:

I thought you did raise the point of the constitution requires that —

Robert McDavid Smith:

An adequacy of hearing?

Potter Stewart:

But the statute doesn’t.

You’re under the words of the statute as you and the government both agree but you said that’s not enough constitutionally, isn’t that it?

Robert McDavid Smith:

Well I put it this way, may it please Your Honor.

Potter Stewart:

Well, what do you say?

Robert McDavid Smith:

If you were to equate this exactly with Wickard versus Filburn, we would not be entitled to a hearing on whether the particular activity we are talking about had an effect on commerce.

Of course, before Mr. Filburn was penalized, they had to have a hearing, but we don’t think it can be equated with it at all.

We don’t think that the background of the statutes that matters dealt with some law or that statute is even drafted in the similar manner.

Now to equate it with the National Labor Relations Act, then we reach the point made by Your Honor and we do contend that we had that of a hearing in an opportunity to show we don’t affect commerce, yes sir.

William J. Brennan, Jr.:

And that the statute doesn’t give you an equal opportunity.

Robert McDavid Smith:

And the statute does not do this, yes sir.

Yes sir.

Thank you for that question.

William J. Brennan, Jr.:

[Inaudible]

Robert McDavid Smith:

That’s right.

We do say that, Your Honor.

That’s why we — may I say this that —

William J. Brennan, Jr.:

It’s not a matter of hearing.

It’s a matter of that’s (Voice Overlap)

Robert McDavid Smith:

That’s right.

William J. Brennan, Jr.:

And irrational definition for Congress who made in the statute.

Robert McDavid Smith:

Yes sir, in the light of common experience.

Now, I think that if I may sum up that question in relation to one that Mr. Justice Black asked a little while ago, we’ve never said that we think findings are necessary in and off themselves in form of findings, but where the matter that Congress is dealing with does not have a rational relationship to the regulation in common experience then certainly something must be shown, to show there is a connection.

For example, in the statute that was involved in United States versus Tot which this Court held violated constitutional rights on another reason.

The statute itself made it a Federal offense for a convicted felon to be in possession of a pistol which it moved in or found which had moved in on interstate commerce.

So far as I know, unless the Court could have had knowledge of its own from some source that this was a proper thing for the Congress to deal with.

It wouldn’t have been upheld, but there were.

Robert McDavid Smith:

There was a legislative history and there was a — the justice department decision.

FBI showed that this was a very important problem, this matter of transporting firearms illegally and so as to reach criminals.

Now what we are saying is that, unless the legislative history shows a relationship and you then have to fall back on common experience and in common experience, there is no relationship here between the matter regulated and an affect on commerce.

Byron R. White:

[Inaudible] discrimination and purchasing or between purchases and discrimination?

Robert McDavid Smith:

Well I have to carry it one step further if I may Your Honor and that is to a burden on commerce or an interference or even the change of question — of changing the flow or shifting the flow.

Byron R. White:

Well I didn’t know — you know you denied that the purchase would substantially decrease, but that’s not a burden on the Congress?

Robert McDavid Smith:

Well, under the statute, I don’t understand that there’s any place to determine that purchases are decreased.

That’s the very point that I’m trying to make it.

Under this statute whether you — whether it would affect the dec — affect your purchases in volume, increase them or decrease them it doesn’t any difference?

You’d still be covered and I don’t think there’s anything on which Congress could have placed that determination and certainly, I don’t think it’s a common experience.

[Inaudible] agree with it.

What do you do with the second point of the government’s argument, that this statute does cover and there is evidence to support it any kind of restraint on the commerce.

Maybe this restaurant would never have purchased a nickel to worth approved again in commerce, but the fact that it is discriminating prevents people from coming to Atlanta and buying in a department stores etcetera, which as I understand it is the second branch of their argument.(Voice Overlap)

Robert McDavid Smith:

I thought [Inaudible] — that argument or at least express no willingness to stand on here.

I take it (Voice Overlap)

— Whether to understand their abandonment.

Robert McDavid Smith:

Well perhaps not abandoned, but as I understand it, Your Honor, is questioning whether Congress could have concluded on the basis of whatever was before it.

That racial discrimination in all of the restaurants all over the country, just in and of itself just has an effect on commerce and without any of reference to the operation of the individual restaurant, they just proscribe.

Is that the argument?

No, that isn’t quite the argument.

I understood the argument — the government’s argument was that Congress stopped short of that and they said “We will deal with the restaurant that has purchased food — has purchased food that was moved in commerce,” but when it comes to effect on commerce, we’re not limited in showing an affect on commerce to the question as to whether that restaurant or a restaurants generally [Inaudible] food in commerce but they can rely on the general evidence, as I get it that trade generally, interstate trade generally in Atlanta is affected by that category of discrimination and — or discrimination in that category of restaurant.

Robert McDavid Smith:

Well, I did not understand —

That’s how I understood their argument.

Robert McDavid Smith:

I — I did not understand them to press that argument but to —

Hugo L. Black:

[Inaudible]

Potter Stewart:

We would better wait to have that cleared up by the Solicitor General.

Hugo L. Black:

Again it said at some [Inaudible]

Robert McDavid Smith:

But that’s cleared up when I was through the [Inaudible]

Potter Stewart:

I didn’t really care the way Mr. Justice Harlan did but that’s the matter of [Inaudible]

Robert McDavid Smith:

I can say this.

Hugo L. Black:

[Inaudible] I think it’s quite important that, that argument be either obliged and — or taken out of the case.

Well, I think your argument on that premise that you’re arguing on this are [Inaudible]

Robert McDavid Smith:

Well, Your Honor on this broader argument, that has been suggested, we would then be faced with determining, did Congress make any such determination and did it mean to apply the Act on that broader basis.

We think at the outset that it didn’t, but if they are seeing in effect, they could have done it and therefore they could have done it on a more restricted basis, then we say there is no basis or whatever to have reach that conclusion on the basis of restaurants.

Now, whatever affect the demonstrations of 1963 had and I’m perfectly frank to say to the Court that I do not believe that the common experience of this Court or people generally will permit those demonstrations to be given any great weight.

If any of the arguments made by the Solicitor General as the economic effect have any weight, there must be the overall economic arguments of moving business back and forth between the States and removing what he refers to in his artificial barriers.

Certainly, those demonstrations created entirely different problem from what has existed before or sense and certainly they were not dealt with by the Congress has an effort to avoid further demonstrations.

They — no effort made, for example to deal with the demonstrations themselves at all and there certainly was no determination as to what call was the demonstrations.

So there was a — I think throughout the hearings, there was a — and throughout the Solicitor General’s argument here, there is a — their suggestion that there was an effort to remove the — to remove the clause of the demonstrations and that the cause — the basic cause of them back there was discrimination in restaurants.

Robert McDavid Smith:

Certainly in that general sense, Your Honor —

Potter Stewart:

(Voice Overlap) to remove them –

Robert McDavid Smith:

(Voice Overlap) There are plenty of testimony that effect but I meant in relation to restaurants particularly.

Well, certainly you had it in connection with the –-

Potter Stewart:

The demonstrations were about restaurants particularly in many areas.

Robert McDavid Smith:

Well —

Potter Stewart:

Variety store or restaurant.

Hugo L. Black:

We had about a hundred cases I guess.

Robert McDavid Smith:

Most of them were restaurants and the department stores and variety stores that had (Voice Overlap) that segregated counters but had mixed trade.

William J. Brennan, Jr.:

And we had all kinds Mr. Smith, would suggest something.

In this whole picture, may we take some judicial notice and 100 of cases we have here, what this is all about in restaurants.

Robert McDavid Smith:

Your Honor, the courts have been taking judicial notice quite a number of things for a long time and certainly anything has reason of that, we wouldn’t feel it was unfair for the Court to consider it because we have some knowledge that the Court knew it.

However, on this broad approach that has been suggested which I don’t believe has ever been argued by the Solicitor General before and I’d like very much to deal with it in the supplemental briefs that this unusual procedure of the Court has permitted us has contemplated, I would like to deal with that if I may, Mr. Justice Harlan.

But I don’t believe that there’s anything on which we could say that the Congress could have made any such finding in this statute when it clearly undertook and purported and said to all the world, it applies to only what affects commerce decided on a case by case basis and what is suggested by Your Honor on that is that it really isn’t a case by case basis at all.

So absolutely, overall, aggregate effect type theory and I don’t think that it did that.

Well they didn’t.

They didn’t report to proceed in that case by case basis.

Robert McDavid Smith:

Well they provided in every case for hearing in the District Court.

Yeah, but only on the issue is to whether it satisfy the statutory test.

Robert McDavid Smith:

Well they have one or two tests have to be satisfied.

Yeah, but once you approve interstate in the case of restaurants wouldn’t you prove the service or offer to serve interstate customers or the purchase of food, service the food which has moved in commerce, then there’s no other issue back to be tried.

Robert McDavid Smith:

That’s true, except the violation.

So that you don’t, this is not a statute like the National Labor Relations Statute where (Voice Overlap) —

Robert McDavid Smith:

No, it’s not.

— commerce issue itself as it is an administrative [Inaudible]

Robert McDavid Smith:

It doesn’t turn out to be, Your Honor, we think the legislative history shows what it intended to be, it does not turn out to be.

Potter Stewart:

And that’s what you’re complaining about.

Robert McDavid Smith:

Yes, exactly.

I think people ought to have that right.

I can’t quibble with the wisdom of Congress.

I thought you said — I thought you said if I get you correctly.

I thought you’re argument has two-fold namely that Congress has put in a self-liquidating, self-defining terms of affecting commerce that the definition is chosen, is a rational one because once purchase of food doesn’t mean that you are now purchasing food – you are serving food that you move in commerce.

Robert McDavid Smith:

That’s right sir.

And since the Congress did not provide for a honing on that question, this is a new valid exercise, there’s no effect on commerce shown.

Robert McDavid Smith:

I think everything that Your Honor has stated is compatible with our position except that I don’t say that since they haven’t found a hearing, it cannot be upheld on that basis.

The point that we were making is to a hearing is that one of the authorities they relied on was Reliance Fuel and there was a hearing, and there was substantial evidence.

Yes.

Robert McDavid Smith:

That’s the point that we — we didn’t want to get the — we tried to keep the two theories separately.

It seems to us it’s entirely clear that there are two approaches, the Wickard versus Filburn approach and the Reliance approach and the Reliance approach involves a hearing.

So —

A third approach which you’re going to brief?

Robert McDavid Smith:

And the third approach is the one that has never been followed to our knowledge in anything of this nature before and we will brief that, I have not in the interested discussing the interstate commerce aspects stated the facts of our case to add a few facts.

I realize that it’s laid in the case to be making them clear, but I would like to emphasize that, this particular restaurant is 11 blocks from an interstate highway, 18 blocks from the railroad station, 22 blocks from the bus station.

It is completely of by itself as far as interstate activity is concerned.

These people, the appellees know most of their customers by sight, they are regular customers, they see them, they are basically family and business people.

I think it’s rather important that this is true because it is not a case such as a Howard Johnson’s Restaurant would present.

Now —

Potter Stewart:

This maybe a lunch time eating place or –?

Robert McDavid Smith:

The biggest meal is certainly lunch time, Your Honor.

They have an evening meal.

Potter Stewart:

Business people who are in the area there?

Robert McDavid Smith:

Yes.

Well, people get in their cars and drive all the way out they are from Downtown Birmingham area.

Yes, sir, it’s rather the popular place.

Now — excuse me.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

It’s not small in the sense, that it’s a little counter.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

Well it will set roughly 200 people and it — it serves 500,000 meals to much less people than that.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

They [Inaudible] that’s right.

Now, may it please the Court on this matter of whether the Court below should maintain the injunction, now we have taken the position throughout this litigation that the court below was correct.

We do not have a great deal of time left on the point but may I — in conclusion, call attention to facts that relate particularly to the procedural aspects of the case.

There was never any question that the appellees were covered by the Act, at least their complaint undertook to show that and certainly by the time of the hearing, this was shown.

It has never been contended they are not covered by the Act.

In fact, it has been stipulated that they are.

So they were in a violation of a statute which had immediate application to them, perhaps not immediate penalty but it had an immediate application.

Two days earlier, the Department of Justice had filed a suit in the same court against 15 restaurants in one case, lumping them all together and asking for a joint trial as to all of them on this matter of no additional expense that has been suggested by the Solicitor General.

We think that this suggests a reason why the remedy afforded under the Act would not be as efficient and as convenient as the one that was available to us.

Now as far as precedent is concerned for the injunctive feature in the case of Stafford versus Wallace which has been relied on by the Solicitor General in his brief and may I believe, it was mentioned this morning those are federal statute to regulate stockyards and there is hearing provided before the Secretary of Commerce or Agriculture, excuse me, Secretary of Agriculture.

Whatever he rule was — could be appealed to the Court of Appeals for review and there was no penalty just as the case in this statute, there was no penalty until after you have failed to comply with the Secretary of Agriculture’s ruling.

I think the case was very close to the present case and the injunction was held proper by this Court via, Wickard versus Filburn, of course as already been mentioned there is authority.

Most of the cases relied upon by the Solicitor General in his brief, but not this morning where cases dealing with the time honored rule that Federal Courts generally just do not interfere with the administration of justice in State Courts unless absolutely necessary.

That point, we do not make any — raise any question about it.

That is the only explanation we know about the City of Gwinnett case which is cited in the brief.

May it please the Court, we would like to close our presentation of this case with — by simply reminding the Court that we are dealing here not with any effort to restrict Congress’ power to regulate interstate commerce or local matters that truly affect.

But if Federal system is to be maintained, then Congress cannot have under the commerce powers broad discretion as states have under the police power and we don’t believe that historical precedents show that they have.

Now, we do not urge any restriction of any of any line of authority that exists today, but it’s just plain, I’m sure to every justice on this Court, that this does represent an area for which there is no immediate authority and for which there is no really close analogy.

Hugo L. Black:

That seems to me gratifies for a long time, has settled your basic point against you which is that the mere ending of the commerce coming to rest or whatever you want to call it, it doesn’t take away congressional power regulated in that field in order to prevent burden of commerce.

There are at least 25 to 50 cases, that’s what it tells.

Robert McDavid Smith:

I believe, Your Honor, that everyone of them are holdings relating to a statute where the essential and primary purpose of the statute was to regulate the transportation of goods in commerce which was true in the —

Hugo L. Black:

No, but we had — I happen to recall one of Plasterer’s, Plasterer’s Union where there was a combination between union and the contracts in regard to plasterers in a city.

But we feel that was — it was when the power of Congress to regulate under the antitrust law and the Bradford case which — long time ago, we had this question about — it’s already in and in the Sullivan case that I mentioned.

Robert McDavid Smith:

We don’t have to quarrel with any of those cases Your Honor.

Hugo L. Black:

Well, but the basic idea on which they rest with the clause, what Congress has acted on this, maybe they were wrong.

Robert McDavid Smith:

We don’t question that.

Hugo L. Black:

But the basic reason for those cases was that although the commerce had him in the activities with reference to which were purely local, Congress still had power to regulate it because it had moved in interstate commerce.

Robert McDavid Smith:

Yes sir, but they were regulating the goods themselves or the activities related directly to the goods.

Hugo L. Black:

Well that — what they’re regulating here are the activities relating to goods that it moved in commerce.

Robert McDavid Smith:

Let’s just bare point we wish we have been able to make, apparently we have not, Your Honor.

This is not related to the case.

Hugo L. Black:

But I thought they can because that’s what they’re regulating.

Robert McDavid Smith:

If they’re regulate it to cooking of the food, I think you would have parallel that would be applicable, but here, we’re regulating something that is totally separate and apart from the use of the food and the use of the food is purely incidental, may it please the Court.

At least, that’s our view of it and we’re not in the position to urge it against Your Honor.

We should —

Hugo L. Black:

But I thought you said that because I wanted you to take your view —

Robert McDavid Smith:

Yes sir.

Hugo L. Black:

— as I see it.

That point is foreclosed by past cases unless we overrule them.

Robert McDavid Smith:

Well, I don’t believe there are any cases you’d have to overrule, Your Honor, to decide this case in our brief.

Hugo L. Black:

(Voice Overlap) I don’t believe I would be a genius enough to do it.[Laughter]

Robert McDavid Smith:

Well, we would hope enough supplemental brief to persuade Your Honor further.

Thank you.

May I ask you?

Robert McDavid Smith:

Yes sir.

Ask you one question on the procedural point.

Is your client willing to have this case in its present posture regarded as an appeal from a declaratory injunction without an injunction?

In other words, are you willing to consent to the vacation so to speak of the injunction that Justice Black has already succeeded the vacation?

Robert McDavid Smith:

If I understand Your Honor correctly, my answer is yes because I understand that under the Federal Rules of Civil Procedure (Voice Overlap) if this Court decided the case in our favor on the merits, it would remain it to the Lower Court with orders to vacate the injunction and of declaratory judgment force anyway.

Alright, you’re properly up here —

Robert McDavid Smith:

We are here.

You’re properly up here even though if — just as if this case had been brought before a single judge court.

Robert McDavid Smith:

Yes, sir and I think the proper result would be, if the government prevailed on that point would be to send it to the lower court for declaratory judgment anyway and for that reason, I would say yes.

We would have an objection to that.

Arthur J. Goldberg:

[Inaudible]

Robert McDavid Smith:

Not to my knowledge Your Honor and I’m not saying that I know that it’s not.

I just don’t know either way, Your Honor.

I’ve not known of an instance where it has been.

Potter Stewart:

Well presumably it is, let’s say it’s perfectly a valid statute so long as this is not —

Robert McDavid Smith:

Well I don’t have any question that — I thought that the question was asked in the context of the demonstrations of last year.

We didn’t have any this year so I don’t know —

Potter Stewart:

(Voice Overlap) something else again.

Robert McDavid Smith:

Yes, sir.

Well I’m sure that — that the ordinance which has been there for many, many years state statutes still in effect would be applied, but whether they in this context, I do not know of any cases.

Earl Warren:

Mr. Solicitor General.

Archibald Cox, Jr.:

Mr. Chief Justice, it’s late now.

I’ll try to confine myself in clarifying the client, fairly two points that Mr. Justice Harlan raised.

First, so far as the matters of pleadings go, we of course, have no objection to Mr. Smith’s pleadings being treated as if he were asking for a declaratory judgment.

The point of my acquiescence in the suggestion stops there.

I don’t think it essentially changes the case, but I don’t mean to stand on any point of pleading.

Now with respect to our view on the effect of the demonstrations of the kind that took place in Birmingham, being directed against racial segregation in places of public accommodation of all kinds, our view with respect to that as I tried to state it and now I’m trying to be accurate again is it would be quite possible for us to argue and we do argue to the extent that it’s necessary.

We certainly don’t abandon the argument that as racial segregation in places of public accommodation generally, causes disturbances, demonstrations that interfere with the course of retail business generally and so lessen the flow of goods into the State and as previously shown before Congress did happen, that is sufficient to justify prohibiting discrimination in all such places under the Commerce Clause.

Now I say that I don’t stand on that, meaning only that that isn’t the whole of my argument that I don’t have to ask the Court to go that far.

I don’t mean that I abandon the argument or that I hesitate to make it.

I don’t think I have to go that far in this case because the Congress apparently concluded itself not to rely upon — not to reach that broadly.

I don’t know why, but it concluded that, so far as this case and this type of case goes where we’re not involving discrimination supported by a state action, that it would make this applicable only to all the restaurants which are serving food received in interstate commerce.

And there, there is another individual link of which we think is on the precedents in effect conclusive.

We think its importance is to be appraised not in terms of the individual restaurant or the likelihood of a dispute of that individual restaurant, but rather of the tendency at all restaurants of this kind which of course this the effect in Wickard and Filburn, the effect in Reliance Fuel, and all the others and we see no reason to suppose that Congress wasn’t mindful of that and took the cumulative effect in the view.

Now I would like in this connection to emphasize one distinction which occur one point which of course its the appellees interest to fuzz over a bit.

I don’t think it is fair to say that Section 201 (c) (2) makes the Act applicable to every restaurant that ever has received some food from out of the state.

That would be a quite different case at least in respect to what I stated second was the — the second thrust, the second point if I may of the thrust to my argument because here it speaks in terms of serves or offers to serve.

Archibald Cox, Jr.:

I presume that, that means something continuing.

And while it is true in the case of Virginia hams like a Fine Wine Seller, I suppose things there maybe held and served over a period of time, that’s the Freak case.

Now the average case, of course would be of the 90% of the cases where if you are serving food, a substantial portion of which comes from out of state, this is a practice.

You’re doing it and there’s a general turnover and the Freak case, Congress would certainly be entitled to take into account under the Penumbra doctrine.

It’s up to it to draw — to draw a line because we must remember here that Congress does have the power under the [Inaudible] purchase of Purity Extract & Tonic against Lynch and the other cases dealing with the transportation of intoxicating liquors to consider the interrelationship between these businesses and to draw the line so that it is not unfair to those who are closer to Congress to let the other ones go.

I don’t think I need to stand on any such thing but again I don’t abandon that.

I might suggest one final and general word here.

A good deal has been said about if Congress can do this then it can do that, if Congress could do that, then it can do — go further and this may swallow up on the distinction between the nation and the states.

Of course, what has to be drawn here is a practical line and a line which the cases make clear is for Congress to draw and the only question here is the burden isn’t on us to prove the relationship between these practices in interstate commerce even if we hadn’t said — hadn’t a word of evidence of that kind as Mr. Justice Black has suggested.

Still, unless the Court could conclude that there was no rational relationship that the Congress could find but then the congressional judgment would be conclusive.

And we simply go forward to show that there was plenty of evidence of things that the Congress could take into account in addition to what they know of their own knowledge not to the exclusion of it.

This wasn’t a matter of a record.

We’ll take this that Congressman knew out of their own experience were relevant for them to take into account here.

Where there is that rational basis, then as it’s so often the case, of course, the place to which the people must look to draw the line, to preserve a difference between what is local and what is national, is to the wisdom and discretion of the Congress.

Mr. Chief Justice Marshall pointed this out in the Gibbons and Ogden and referring to the Congressman said that they are the restraints on which the people must often rely solely as in all representative governments.

Here, we think that connection existed that we have clearly shown that there’s something which Congress could, indeed I think must rationally rely on as a national commercial problem.

And once that appears and the legislation is shown to be reasonably adapted to solving that problem, then the question of what action shall be taken or not be taken as far as the Congress, that is the place where people must look for the final decision under those circumstances.