A 20TH CENTURY EMANCIPATION PROCLAMATION: PRESIDENTIAL POWER PERMITS WITHHOLDING OF FEDERAL FUNDS FROM SEGREGATED INSTITUTIONS Harry Kranz* I. INTRODUCTION As THE 100th Anniversary of President Lincoln's Emancipation Proclamation draws near,' it has been suggested 2 that President Kennedy issue a modern proclamation forbidding use of Federal funds in support of segregated institutions.' Such a proclamation 4 would require that seekers of Federal financial aid, including state and local governments and private institutions, agree in writing that there shall be no discrimination or segregation based solely on race, color or religion in any Federally aided facility, program or serv* Special Assistant to the Associate Director for Peace Corps Volunteers, U.S. Peace Corps. Formerly Deputy Director, Foreign Trade Union Training Program, American University. Now a senior student at Washington College of Law, American University. 1. Three dates have been mentioned. On July 22, 1862, President Lincoln presented an initial draft to his cabinet. On September 22, 1862, Lincoln issued his preliminary proclamation, declaring that if the seceded states did not lay down their arms and return to the Union by January 1, 1863, he would declare their slaves to be "forever free." The formal Emancipation Proclamation followed on the first day of 1863. 5 The World Book Encyclopedia 200 (Field Enterprises Educational Corp., 1961). 2. See, e.g., Dean Eugene V. Rostow of the Yale University Law School, "The Freedom Riders and the Future," The Reporter, June 22, 1961, p. 21; the Rev. Martin Luther King, New York Times, October 17, 1961, p. 1. 3. Throughout this article the phrase "segregated institutions" includes Federal grants to state and local governments and school districts, as well as to private institutions, such as colleges and hospitals, and to private individuals who spend the money at segregated institutions. It is the author's contention that these indirect Federal expenditures in support of segregated operations are just as subject to Constitutional limitations and Presidential power as the more direct Federal spending on armed forces, government employee salaries and national contract-buying of goods and services, all of which have been covered by executive orders barring racial discrimination. See Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W.Va. 1948) (government can't escape its constitutional obligations by providing "the ways and means for a private individual or corporation to discriminate against its own citizens"). 4. A presidential proclamation or executive order is an appropriate means for promoting human rights. See, e.g., President Franklin D. Roosevelt's order creating a wartime Fair Employment Practices Commission, Executive Order 8802, 6 Fed. Reg. 3109 (1941) and President Kennedy's Executive Order 10925, 26 Fed. Reg. 1977, Mar. 8, 1961, creating the President's Committee on Equal Employment Opportunity to assure non-discrimination in Federal employment and on work performed under government contract. On the legal effect of Presidential proclamations, see Lapeyre v. United States, 17 Wall. (84 U.S.) 191 (1873); United States v. Klein, 13 Wall. (80 U.S.) 128 (1872). For the advantages of a single proclamation over piecemeal orders, see Leadership Conference on Civil Rights, Proposalsfor Executive Action To End Federally Supported Segregation and Olher Forms of Racial Discrimination,August 29, 1961, pp. 2-3.

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ice, and would direct appropriate executive departments to withhold

grants from those who refuse to agree to or abide by the anti-bias requirement.5 That the President, without further action by Congress" or the courts,7

has the statutory and constitutional power to issue such an executive order or proclamation,8 is our thesis. Although the United States Supreme Court has not ruled on this specific issue, its decisions in three separate fields-state-sanctioned segregation, Federal grant-in-aid statutes, and the President's express and implied

constitutional powers-coalesce to support Presidential withholding of public funds from segregated institutions. To weave our pattern of Presidential power, we shall examine each of these three threads. II. STATE-SANCTIONED SEGREGATION IS UNCONSTITUTIONAL From Supreme Court decisions over the past 80 years, it is clear that

state-sanctioned segregation is unconstitutional. The development and current content of this doctrine may be summarily traced: While purely private discrimination is not constitutionally proscribed, "state action" must be non-discriminatory.' "State action" under the Fifth and Fourteenth Amendments includes action by the Federal or state

governments through any bran6h, including the courts, the Congress or Legislature, and the President, Governor or lesser executive officials. 10 Compulsory racial segregation in state-supported schools violates the 5. Withholding of Federal grants from segregated institutions has been urged by the United States Commission on Civil Rights in its Report, 1959, p. 329; and in Equal Protection of the Laws in Public Higher Education, 1960, p. 250. See also Leadership Conference on Civil Rights, op. cit. supra note 4; Rostow, op. cit. supra note 2. 6. Congressional rules make it unlikely that Congress will enact specific, affirmative pro-civil rights laws in the near future. It is enough that Congress, in the broad delegations of power written into many Federal grant-in-aid laws, has already authorized the executive to act against segregated institutions, as will be shown later. On the Senate filibuster rule, see Emerson and Haber, Political and Civil Rights in the United States 132, note 4 (1958). 7. Litigation has been relatively ineffective in implementing the Supreme Court's 1954 decision outlawing school segregation. See Southern Education Repoting Service, A Statistical Summary, State by State, of Segregation-DesegregationActivity Affecting Southern Schools, 1954-1960, p. 2; Report of the United States Commission on Civil Rights 309 (1959); Blaustein and Ferguson, Desegregationand the Law 269 (1957). 8. President Kennedy has said: ". . . we will use the tools now given us by the Constitution itself and the laws already passed to make the American promise come true for all its citizens . . ." Meany, Kennedy Discuss the 1960 Election Issues, 67 The American Federationist 15 (November, 1960). 9. Civil Rights Cases, 109 U.S. 3 (1883). 10. 16 CJ.S. Constitutional Law § 544. See also Cooper v. Aaron, 358 U.S. 1 (1958).

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equal protection clause of the Fourteenth Amendment," and school segregation financed by the Federal government violates the due process clause of the Fifth Amendment."2 Neither the Federal nor state governments may support segregated schools "through any arrangement, management, funds or property." 3 "All provisions of Federal, state or local law requiring or permitting" racial segregation in public education are unconstitutional."4 Not confined to schools, the Supreme Court's historic decisions during the past seven years have signaled the end of all racial discrimination by law in the United States.' 5 Laws separating the races in any public facility, including parks and playgrounds,' 8 golf courses,'17 swimming pools and beaches,' 8 restaurants, 9 transportation facilities,20 and public housing,2 ' have been stricken down as discriminatory "state action." The concept of "state action" goes beyond the mere construction, operation or maintenance of public facilities with public funds. It embraces within constitutional protection many activities by "private" parties, including instances where the state has actively lent its aid; 22 has conferred the power that has subsequently been abused; 2 3 has transferred one of 11. Brown v. Board of Education, 347 U.S. 483 (1954). 12. Bolling v. Sharpe, 347 U.S. 497 (1954). 13. Cooper v. Aaron, 358 U.S. 1 (1958). 14. Brown v. Board of Education (Implementing), 349 U.S. 294 (1955). 15. Blaustein and Ferguson, op. cit. supra note 7 at 198; Emerson and Haber, op. cit. supra note 6 at 1417-1419. 16. Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (4th Cir. 1955), aff'd per curiam, 350 U.S. 877 (1955); Department of Conservation and Development of Virginia v. Tate, 231 F.2d 615 (4th Cir. 1956), cert. den., 352 U.S. 838 (1956); Hampton v. City of Jacksonville, (S.D. Fla. Civil No. 4368-J, Dec. 7, 1960) (includes parks, playgrounds, pools, tennis courts, zoo and baseball and football fields.) 17. Holmes v. City of Atlanta, 350 U.S. 879 (1955); Simkins v. City of Greensboro, 149 F. Supp. 562 (M.D. N.C. 1957), aff'd 246 F.2d 425 (4th Cir. 1957). 18. City of St. Petersburg v. Alsup, 238 F.2d 830 (5th Cir. 1956), cert. den. 353 U.S. 922 (1956) ; Prymus v. High, (S.D. Fla. Civil No. 9545, Sept. 12, 1960). 19. Derrington v. Plummer, 240 F.2d 922 (5th Cir. 1956), cert. den. 353 U.S. 924 (1957); Burton v. Wilmington Parking Authority, 81 S.Ct. 856 (1961); Boynton v. Virginia, 364 U.S. 454 (1960). 20. Gayle v. Browder, 352 U.S. 903 (1956) (buses); Henderson v. United States, 339 U.S. 816 (1950) (trains); Henry v. Greenville Airport Commission, 284 F.2d 631 (4th Cir. 1960) (airports). 21. Banks v. Housing Authority of City and County of San Francisco, 120 Cal. App. 2d 1; 260 P.2d 668 (1953), cert. den., 347 U.S. 974 (1954); Detroit Housing Commission v. Lewis, 226 F.2d 180 (6th Cir. 1955). 22. Shelley v. Kraemer, 334 U.S. 1 (1948); Barrows v. Jackson, 346 U.S. 249 (1953); Hurd v. Hodge, 334 U.S. 24 (1948); Pennsylvania v. Board of Directors of the Phila. City Trusts, 353 U.S. 230 (1957); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir., 1945), cert. den., 326 U.S. 721 (1945). 23. Darringtonv. Plummer, supra note 19; Lawrence v. Hancock, supra note 3; Burton v. Wilmington Parking Authority, supra note 19.

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its regular functions to other hands;

4

51

or has seemingly endorsed the

objectionable action by declining to halt it. 5 III. PRESIDENTIAL POWERS TO WITHHOLD GRANTS UNDER THE FEDERAL AID STATUTES In the hands of a President desiring to halt state-sanctioned segregation, Federal grants-in-aid are a major tool. Their phenomenal growth in the past sixty years has created "the most powerful device in this century for reshaping national-state relations. ' 26 Today they comprise nearly 8% of total Federal cash payments,1 7 and more than 14% of total state receipts from all sources. 2 They are of particular importance in helping to subsidize segregation in the eleven Southern states, where Federal contributions to state and local governments (excluding grants to individuals and institutions) constitute from 10%o to 22%o of state and local government expenditures.2 9

Grants to the states, with Congressional and executive strings attached, are almost as old as the nation." Not only did the courts uphold Congressional power to condition grants of public land, 31 but they also viewed with "great liberality" the discretion exercised for more than a century by Presidents who made reservations of the public lands for a variety of 24. Steele v. Louisville and Nashville Railroad Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210 (1944); Syres v. Oil Workers International Union, 350 U.S. 892 (1955); Marsh v. Alabama, 326 U.S. 501 (1946); Department of Conservation and Development of Virginia v. Tate, supra note 16. But cf. Johnson v. Levitt & Sons, 131 F. Supp. 114 (ED. Pa. 1955); and compare Connecticut College for Women v. Calvert, 87 Conn. 421, 88 A. 633 (1913) and Betts v. Easley, 161 Kans. 459, 169 P.2d 831 (1946), with Watchtower Bible and Tract Society Inc. v. Metropolitan Life Insurance Co., 297 N.Y. 339, 79 N.E.2d 433 (1948), cert. den. 335 U.S. 886 (1948). 25. Terry v. Adams, 345 U.S. 461 (1953); Public Utilities Commission v. Pollak, 343 U.S. 451 (1952). See also Miller v. Schoene, 276 U.S. 272 (1928), and Lynch v. United States, 189 F.2d 476 (5th Cir. 1951). On the "state action" concept, see generally Gellhorn', American Rights 174-82 (1960); Greenberg, Race Relations and American Law 51-52 (1959); Antieau, Commentaries on the Constitution of the United States 144-145 (1960); Note, The Impact of Shelley v. Kraemer on the State Action Concept, 44 Calif. L.R. 718 (1956). 26. Young, Essentials of American Government 55 (8th ed., 1959). 27. Bureau of the Budget, Special Analysis of Federal Aid to State and Local Governpients in the 1962 Budget, p. 3. 28. Ibid. 29. They constitute 22% in Alabama and Arkansas; 21% in Mississippi; 16% in Georgia; 15% in Louisiana, South Carolina and Tennessee; 14% in North Carolina and Texas; 11% in Virginia; and 10%o in Florida. U.S. Department of Commerce, Statistical Abstract of the United States 410 (1960). j30. Starting in 1802, Congress bestowed on newly-admitted states public land to be used for development of permanent school funds. Young, op. cit. supra note 26. See also Corwin, Annotated Constitution of the United States 113 (1953). 31. Stearns v. Minnesota, 179 U.S. 223 (1900); McGehee v. Mathis, 71 U.S. 143 (1866).

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purposes-all without Congressional authorization-thereby "creating precedents which are available, and which have been used to justify an equally broad range of presidential discretion in other areas of substantive '3 2 activity. In the case of monetary, as distinguished from land, grants to the states, court recognition of the constitutional authority of Congress to provide for the common defense and the general welfare of the United States was longer in coming. Under decisions of the Supreme Court within the past twenty-five years 3 4 however, Congressional power to make cash grants and to impose conditions on the Federal aid is today beyond dispute. In enacting Federal aid legislation, Congress has neither been willing to give the states a blank-check appropriation free of Federal executive supervision,"5 nor has it been able to spell out in the law all of the conditions upon which the aid was predicated.3 6 Leaving administration of the grant to the executive branch, Congress has delegated broad rulemaking power to Federal administrators in every grant-in-aid law passed 7 in the 20th Century. Whether the source of the Federal standards is the law or the administrator's regulations, the Federal statutes ordinarily authorize withholding of the grants from would-be recipients who do not meet the established standards. However, on the issue of racial discrimination or segregation in the use of the Federal funds, Congress has never written a specific anti-segregation standard into the fifty-odd grant-in-aid laws. Most of them are silent on the specific question of granting or withholding funds from segregated institutions. A few permit or require grants for segregated activities. 32. Schubert, The Presidency In The Courts 353 (1957). Presidents reserved public lands for military purposes, to conserve natural resources, to resettle Indian tribes, and even to create lighthouses and bird sanctuaries. Ibid. 33. U.S. Const., art. 1, § 8, clause 1. 34. United States v. Butler, 297 U.S. 1 (1936); Carmichael v. Southern Coal and Coke Co., 301 U.S. 495 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937); Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947); United States v. Gerlach Livestock Co., 339 U.S. 725 (1950). 35. Bums, Social Security and Public Policy 237-238 (1956); see also Public Health Grantin-aid Amendments of 1954, H.R. Rep. No. 1543, 83rd Cong., 2d Sess. (1954). 36. Burns, op. cit. supra note 35 at 258. 37. No court has ever interfered with Congressional delegation of power under the Federal grant-in-aid statutes, and only two cases, Panama Refining Co. v. Ryan, 293 U.S.

388 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), which have since become historical oddities, have ever restricted administrative authority to the executive in any field.

Congressional power to delegate

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A. GRANT-IN-Am STATUTES MAY BE CONSTRUED TO AUTHORIZE WITHHOLDING

Where the statute, though silent on segregation specifically, has broadly delegated power to the executive, or where it can be construed to authorize a withholding of the grant from a segregated institution, the President has the necessary discretion to act,"8 and the courts will not interfere.39 To avoid the more serious constitutional issues, the courts will unhesitatingly uphold the President's action on statutory construction grounds." They will not only affirm the executive's own interpretation of his powers under the statute,4 ' but presume that he has complied with the statutory conditions that authorize him to take action or limit his power to act. 42 When the President declares that something was "necessary ' 43 or "suitable, "44 the courts merely nod "Amen." 4 5

Among the majority of Federal grant-in-aid statutes which are silent on segregation, but which contain language that may be construed as impliedly authorizing executive withholding are those dealing with impacted area schools, vocational education, libraries, the employment service, airports and housing. In every one of these programs, the Federal government is currently subsidizing segregation or discrimination, even though a Presidential proclamation or executive order could halt it. A few examples of the discretionary language, which could be construed to authorize withholding under the Federal aid statutes, will suffice. 1. Aid to Impacted Areas

The Federal Aid to Impacted Areas Act, 46 designed to provide Federal 38. Arizona v. Hobby, 221 F.2d 498 (C.C.A.D.C. 1954); United States v. Eliason, 16 Pet. (41 U.S.) 291 (1842). 39. Kurtz v. Mofflitt, 115 U.S. 487 (1885); Smith v. Whitney, 116 U.S. 167 (1886). In Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945), the court held that the question of Presidential compliance with Congressional standards in the case of a conflict between the President and a state was political in nature and refused to intervene. 40. United States v. Rumely, 345 U.S. 41 (1953); Crowell v. Benson, 285 U.S. 22 (1932). 41. United States v. Antikamnia Chemical Co., 231 U.S. 654 (1914); United States v. Query, 37 F. Supp. 972 (E.D. S.C. 1941); Fleming v. Mohawk Wrecking and Lumber Co., 331 U.S. 111 (1947). 42. Schubert, op. cri. supranote 32 at 316-318. 43. Merritt v. United States, 264 F. 870, 873 (9th Cir. 1920), reversed on other grounds in 255 U.S. 579 (1921). 44. Kansas or Kaw Tribe of Indians v. United States, 80 Ct. Cl. 264, 313 (1934). 45. While executive legislation far exceeds in quantity that of Congress, it is highly significant that in all United States history, the Supreme Court has invalidated presidential orders only 14 times, while it has declared 80 Congressional statutes unconstitutional in this same period. Schubert, op. cit. supra note 32 at 355. 46. 20 U.S.C. 236 et seq.

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grants-in-aid for the construction and the operation of public schools for the education of children whose parents are employed directly or indirectly by the Federal government, contains at least ten sections which may be construed as authorizing the Commissioner of Education to withhold funds from segregated school systems. For example, in the school "assistance" Act,47 four separate categories of Federal aid are established. Two categories are wholly discretionary. One 48 (payments in lieu of taxes for Federally-preempted land) delegates entirely to "the judgment of the Commissioner" the "determination" of what districts shall get what aid, if any. In the second category40 (school enrollment increases due to Federal contracts in area) the "judgment," "determination," and "estimates" of the Commissioner of what is "necessary," "reasonable," "comparable," "substantial," "equivalent," etc., are to be conclusive. The remaining two categories of Federal aid50 (for children whose parents live and work, or live or work on Federal property) are also replete with discretionary authority for the Commissioner. Under these sections, broadened by the Civil Rights Act of 1960, 1 the Commissioner may determine that a segregated public school system is not "suitable" for the children of men in the armed forces of the United States or otherwise employed by the Federal government in essential defense and domestic activities. He can "determine" that it is both "appropriate" and "gnecessary" to make other arrangements for the free public education of these children,52 and "through deductions from amounts to which the local educational agency is entitled under this Act" the Commissioner may recoup the cost of educating these pupils.53 The "construction" Act,5 4 too, -contains broad language which lends itself to interpretation by the Commissioner. For example, the Commissioner may determine that it is not the construction of additional facilities which creates "an undue financial burden" on a city," but the maintenance of a segregated school system, requiring dual schools, teachers, ad47. 20 U.S.C. 237-239. 48. 20 U.S.C. 237. 49. 20 U.S.C. 239. 50. 20 U.S.C. 238. 51. 74 Stat. 86, P.L. 86-449 (86th Cong.) approved May 6, 1960. 52. For the broad discretion vested in the executive branch by these words, see Merritt v. United States, supra note 43 ("necessary") ; Kansas or Kaw Tribe of Indians v. United States, supra note 44 ("suitable"). 53. 20 U.S.C. 241(b). 54. 20 U.S.C. 631-645 (1960 supplement). 55. 20 U.S.C. 635(c).

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ministrators, and even toilets, gymnasiums and swimming pools, which ' creates the "undue financial burden."56 2. Vocational Education Under the Vocational Education program,sr providing training for those of less than college grade in agriculture, home economics, distributive occupations, trades and industries, the Commissioner of Education and the Department of Health, Education and Welfare are given broad rule-making power 58 and are authorized to withhold Federal grants from states not complying with the administrator's standards. 9 There is a very unusual provision permitting the states to appeal any withholding of funds to Congress." Although racial discrimination is nowhere mentioned in the law, the Department in 1948 issued regulations banning racial discrimination "in the expenditure of Federal funds and in the administration of Federally aided programs of vocational education." 6

3.

Library Services The Library Services Act of 1956,62 which authorized grants to states for the extension and improvement of public library services in communities with a population under 10,000, defines the term "public library" to mean "a library that serves free all residents of a community, district or region, and receives its financial support in whole or in part from public funds." 63 [Emphasis added.] Since a whites-only library or a Negroes-only library does not serve "all" of the residents of a community, it falls short of the statutory definition of "public library." An administrator would be justified in withholding funds from a library which thus did not comply with the statute. 64 56. The Commissioner's broad authority to interpret this section of the Act was confirmed in School City of Gary v. Derthick, 273 F.2d 319 (7th Cir. 1959). 57. 39 Stat. 929 (1917), 49 Stat. 1489 (1936), 20 U.S.C. 11. 58. 20 U.S.C. 11-28. 59. 20 U.S.C. 26. 60. Ibid. The provision also appears in the Morrill Land Grant College Act, 7 U.S.C. 361(g) (1958). If the Secretary of HEW withholds certification of funds for any state, he is required to report the facts and reasons to the President, and the amount involved must be kept separate in the Treasury until the close of the next Congress to permit the state to appeal to Congress. If the next Congress does not direct "such sum to be paid (to the State) it shall be carried to surplus." Thus, the act contains a built-in method of testing Congressional reaction to executive withholding of grants from states which maintain segregated institutions. 61. 45 C.F.R. 102.18. 62. 70 Stat. 295 (1956), 20 U.S.C. 355. 63. 20 U.S.C. 358. 64. Segregation in public libraries is unconstitutional. Giles v. Library Advisory Committee Civil No. 452 (W.D. Va., May 11 and Sept. 14, 1960).

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4. Employment Service Public employment offices, which aid unemployed workers to find jobs, have been established in all states under Federal law."0 The Secretary of Labor and subordinate administrators are authorized to make rules and regulations for the Employment Service, and to determine what funds shall be allotted the states for "proper and efficient" administration.6 This authority has already been used to require farmers seeking temporary help through the U.S.E.S. to agree to maintain minimum job standards, and to prohibit the acceptance of discriminatory job orders from agencies of the Federal government."' Clearly, the maintenance of dual, segregated employment offices and other discriminatory practices is not "proper and efficient" administration of the Act."' A Presidential order could so construe it. 5.

Airports

Despite the silence of the Federal Aid to Airports statute" on the subject of segregation, the FAA Administrator has issued a regulation directing that no funds "will be made available for the development of separate facilities."7 This furnishes another precedent for executive anti-segregation rule-making, even though Southern communities have gotten around the regulation by using the Federal funds for land, runways, lights, etc., while using their own funds to build and maintain segregated terminal buildings.71 There is ample statutory authority to ban such terminal segregation. The Civil Aeronautics Act7" provides that no air "carrier" shall subject any person to "any unjust discrimination or any undue or unreasonable prejudice." While a terminal is not an air "carrier," similhr language in the Interstate Commerce Act has already been construed by the Supreme 65. 48 Stat. 144 (1933), as amended, 29 U.S.C. 49(b)-(n) (1952). 66. 29 U.S.C. 49(k). See also Greenberg, Race Relations and American Law 165-66 (1959).

67. 20 C.F.R. 604.8(c). 68. The extent of current discrimination by the Employment Service is detailed in New York Times, July 2, 1961, p. 22. The effects of employment discrimination are described in Ginzberg, The Negro Potential 122 (1956); Ashmore, An Epitaph far Dixie, especially ch.

7 (1957); Hill, "Recent Effects of Racial Conflict on Southern Industrial Development," 20 The Phylon Quarterly 4 (1959). 69. 49 U.S.C. 403 et seq. 70. U.S. Department of Commerce, Civil Aeronautics Administration, Airports Policy and ProcedureMemorandum No. 41, April 6, 1956.

71. Segregated terminals are unconstitutional. Henry v. Greenville Airport Commission, 284 F.2d 631 (4th Cir. 1960). See also Greenberg, op. cit. supra note 66 at 129-130. 72. 49 U.S.C. 484(b).

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Court to bar segregation in interstate bus terminal restaurants regardless of who operates the restaurant. 3 6. Housing The principal Federal aid housing laws are those providing grants

for low-rent public housing74 and for insurance of mortgage loans on private housing. 7 Although both laws are silent on the question of segregation, the Federal housing administrators have used their rulemaking powers to require or permit segregated housing.7 6 The same authority can be employed to require non-segregated housing. In addition, a 95-year-old civil rights law provides further legislative sanction for outlawing racial discrimination in Federally aided housing.7 B.

FEDERAL STATUTES SANCTIONING SEGREGATION

A handful of Federal aid statutes permit or require expenditure of the grants to maintain segregation, although they also contain discretionary language which could be construed to authorize withholding of Federal grants from segregated institutions. Statutes specifically sanctioning segregated use are those establishing land-grant colleges, agricultural extension services and school lunches, while those which it has been contended impliedly support segregated institutions are the hospital construction and various aid-to-education laws.

Before discussing their legal effect, we shall examine a few of the statutory provisions sanctioning segregation.

1. Land-GrantColleges and Extension Services In the same year President Lincoln was drafting his Emancipation Proclamation, he signed the First Morrill Act (1862),78 setting up the land-grant college system in the United States and donating Federal 73. Boynton v. Virginia, 364 U.S. 454 (1960). 74. United States Housing Act of 1937, as amended, 50 Stat. 888, 42 U.S.C. 1401. 75. National Housing Act of 1934, as amended, 48 Stat. 1246. 76. See, e.g., HHFA PHA Low-Rent Housing Manual, Section 102.1, Feb. 21, 1951, "racial policy," which requires that low-rent housing projects "must reflect equitable provisions for eligible families of all races," but "the selection of tenants and assigning of dwelling units are primarily matters for local determination." Housing segregation has been held unconstitutional. See, e.g., Banks v. Housing Authority of San Francisco, 120 Cal. App. 2d 1 (1953), cert. den., 347 U.S. 974 (1954); Detroit Housing Commission v. Lewis, 226 F.2d 180 (6th Cir. 1955); Ming v. Horgan, Sup. Ct. Sacramento County, Action No. 97130, June 23, 1958, 3 R.R.L.R. 693. 77. Act of April 9, 1866, 14 Stat. 27, as amended; § 18, Act of May 31, 1870, 16 Stat. 144, 42 U.S.C. 1982. It provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 78. Act of July 2, 1862, 12 Stat. 503, as amended, 7 U.S.C. 301-08 (1958).

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lands to support them. That act contained no provision dealing with race, but the Second Morrill Act (1890)

7

'

did. Its "separate but equal"

clause now reads :80 No money shall be paid out under sections 321-326 and 328 of this title to any State or Territory for the support or maintenance of a college where a distinction of race or color is made in the admission of students, but the establishment and maintenance of such colleges separately for white and colored students shall be held to be a compliance with the provisions of said sections if the funds received in such State or Territory are equitably divided as hereinafter set forth: ... In 1890, the Smith-Lever Acts' provided for "cooperative agricultural extension work" to benefit persons not attending the colleges aided under the Morrill Acts. The paragraph in the Second Morrill Act providing for "separate but equal" treatment was repeated here and is the justification for continuing separate extension services in the segregated states. 2 Like the vocational education act, the Morrill Act contains unusual provisions permitting a state to appeal to Congress the withholding of grants by the executive." 2. School Lunch Program The national school lunch program, 4 administered by the Secretary of Agriculture, provides foods and funds to the states for use in serving nutritious midday meals to children attending school of high school grade or less. Withholding of Federal funds is authorized by the statute's "separate but equal" clause, if the pre-1954 constitutional standard of equality is not maintained.8 5 79. Act of August 30, 1890, ch. 841, 26 Stat. 417, 7 U.S.C. 321-28 (1958). 80. Id. at 7 U.S.C. 323. ". . . the Federal Government has been a silent' partner in the creation and perpetuation of separate colleges for Negroes. As to land-grant colleges particularly, the Federal Government has been heavily involved, not only because of its sponsorship of separate colleges in the second Morrill Act of 1890 . . . but because it has allowed southern legislatures to channel almost all Federal funds for specific programs in such institutions to the separate white colleges. The Federal Government bears a heavy responsibility for the resulting discrimination against past and present generations of Negroes." The United States Commission on Civil Rights, Equal Protection of the Laws in Public Higher Education 254-55 (1960). 81. Act of March 2, 1887, ch. 314, § 1, 24 Stat 440 as amended, 69 Stat. 671 (1955), 7 U.S.C. 361(a)-(i) (1958). 82. 7 U.S.C. 361(h) (1958). 83. 7 U.S.C. 361(g) (1958). See supra note 60. 84. National School Lunch Act, as amended, 42 U.S.C. 1751-60. 85. 42 U.S.C. 1760(c). And see implementing regulations in Section 210.17(b), 23 C.F.R. 3091, May 9, 1958. The regulation provides: "If a State maintains separate schools for minority and for majority races, no funds made available pursuant to this chapter shall be paid or disbursed to it unless a just and equitable distribution is made within the

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3. No Federal"Control" in Education Statutes Practically every statute providing Federal aid to education contains a "no Federal control" section. Typical is this language contained in the Impacted Area Act:" (a) In the administration of this chapter, no department, agency, officer, or employee of the United States shall exercise any direction, supervision, or control over the personnel, curriculum, or program of instruction of any school or school system of any local or State educational agency. Although it has been contended that this language mandates Federal grants to segregated schools, the contention is unwarranted. By withholding funds from segregated schools, the administrator would not be exercising any "direction, supervision or control over the personnel, curriculum or program of instruction" of the local school district. He would not be hiring or firing local school personnel. He would not be prescribing the subjects to-be taught. He would not be telling the teachers or local school officials what to teach or how to teach it. Within constitutional bounds, a city is free to hire its own school personnel and frame its own curriculum or program of instruction. It cannot, however, operate its admissions and pupil assignment policies so as to segregate children solely on the basis of their race or color and s7 expect to receive funds from the Federal government. 4. The Hospital ConstructionAct Under the Hospital Survey and Construction Act,"8 popularly known as the Hill-Burton Act, the Federal government may grant funds to the states and municipalities "to assist in the construction of public and other nonprofit hospitals." Such grants cover from one-third to twothirds of the cost of construction of general hospitals and other medical facilities. So that a municipality can receive Federal funds for hospital construction, its state must submit to the Surgeon General, a "state plan" state, for the benefit of such minority races, of funds paid to it under this chapter." For evidence of unequal distribution to Negro students, see McCauley and Ball, Southern Schools: Progressand Problems 150 (1959). 86. 20 U.S.C. 242. 87. Cooper v. Aaron, 358 U.S. 1 (1958). And cf. MacDonald, Federal Aid 268 (1928): ... the expenditure of Federal moneys cannot safely be entrusted to state and local officials without some degree of Federal supervision." 88. 42 U.S.C. 291 et seq. Originally enacted August 13, 1946, the Htill-Burton Act has provided Federal aid totalling $1.3 billion for 5,200 projects costing $4.4 billion. U.S. Department of Health, Education and Welfare, Annual Report 139 (1960). Since 1954, the courts have not ruled squarely on hospital segregation or on the key section of the HillBurton Act. Cf. Johnson v. Crawfis, 128 F. Supp. 230 (E.D. Ark. 1955); Eaton v. Board of Managers 261 F.2d 521 (4th Cir. 1958), cert. den. 358 U.S. 984 (1959).

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agreeing to certain conditions set out in the Act and the Surgeon General's regulations. Conduit for the city's application is the state, which must attest that the city has agreed to abide by the conditions laid down for receipt of Federal funds. The key provision" 9 requires that the Surgeon General "shall by general regulation prescribe(f) That the State plan shall provide for adequate hospital facilities for the people residing in a State, without discrimination on account of race, creed, or color, and shall provide for adequate hospital facilities for persons unable to pay therefor. Such regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a State agency, assurance shall be received by the State from the applicant that (1) such hospital or addition to a hospital will be made available to all persons residing in the territorial area of the applicant, without discrimination on account of race, creed, or color, but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group... [Emphasis added.] Although it has been contended that this section requires grants for segregated hospitals, it actually provides ample authority for the Surgeon General to require that the State plan and municipal applications filed thereunder contain assurances that the facilities and services of the hospital will be made available without discrimination or segregation. Careful reading of the Section discloses that only the first sentence is mandatory. It provides that the Surgeon General "shall" prescribe that the State plan "shall" provide for no discrimination because of race, creed or color." The second sentence, beginning with the words "such regulation may require

. . ."

and including within its text the "separate

but equal" proviso, is an entirely separate sentence, an entirely divisible thought, purely permissive and wholly discretionary. 91 Moreover, the "exception" which "shall be made" in the latter half of the second sentence applies only if the Surgeon General promulgates the kind of requirement he is permitted to make in the entire second sentence.' 2 Thus, the Surgeon General is at liberty to disregard the second sentence and follow the Congressional command imposed in the first sentence. 89. 42 U.S.C. 291(e) (Section 622(f) of Hill-Burton). 90. "Shall" is generally imperative or mandatory. Black, Law Dictionary 1541 (4th ed., 1957). 91. "May" id. at 1131. 92. See, e.g., Clement Martin Inc. v. Dick Corp., 97 F. Supp. 961 (D.C. Pa. 1951), upholding Surgeon General's discretion under Hill-Burton to withhold funds "for violation of his regulations." Such statutory language is permissive. Arizona v. Hobby, 221 F.2d 498, 94 A.D.C. 170 (1954).

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EFFECT OF PRO-SEGREGATION FEDERAL Am STATUTES

What is the effect of these statutory provisions expressly or impliedly requiring or permitting Federal support of segregated institutions? Are they constitutional? Do they bind the executive? Can the President ignore them in administering the acts? 1. Congressional Intent to Meet Current Constitutional Standard of Equality Congress has not written a "separate, but equal" clause into any Federal law since 1954. All were enacted between 1890 and 1946, when "separate but equal" met the constitutional requirements for equal protection and due process, as interpreted by the United States Supreme Court 3 Congress evidently intended to require recipients of Federal grant funds to comply with the then constitutional requirements applicable to public facilities. Since 1954, however, the Supreme Court has ruled that "separate but equal" facilities are "inherently unequal," and violate the Fourteenth and Fifth Amendments to the United States Constitution. 4 Thus, we may conclude that just as Congress intended to abide by the constitutional requirements before 1954, it intends that these programs be administered in accordance with the current constitutional standard prohibiting governmental action in support of segregation. The executive and the courts may, therefore, construe these clauses in accordance with the Congressional intent to comply with the current constitutional standard of equality. 95 2. If Construed as Mandatory or Still Effective, the Segregation Clauses Would Be Unconstitutional On the other hand, if the "separate but equal" clauses "were to be construed as intended by Congress to be fully effective today or as mandating executive expenditures in support of segregated state or local institutions, they would be clearly unconstitutional and hence void. But let the United States Supreme Court speak for itself: "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable 93. Plessy v. Ferguson, 163 U.S. 537 (1896). 94. Brown v. Board of Education, 347 U.S. 483 (1954); Boiling v. Sharpe, 347 U.S. 497 (1954). 95. United States v. Rumely, 345 U.S. 41 (1953) ; Crowell v. Benson, 285 U.S. 22 (1932). And see justice Frankfurter in American Communications Association v. Douds, 339 U.S. 382, 417 (1950): "Congress may withhold all sorts of facilities for a better life, but if it affords them it cannot make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities."

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that the same Constitution would impose a lesser duty on the Federal Government." 901 "All provisions of federal . . .law requiring or permitting such discrimination must yield to this principle . . .,97

. ..The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law."0 8 "... [I]t is said that no one has doubted the power of Congress to stipulate the sort of education for which money shall be expended. But an appropriation to an educational institution which by its terms is to become available only if the beneficiary enters into a contract to teach doctrines subversive of the Constitution is clearly bad. An affirmance of the authority of Congress so to condition the expenditure of an appropriation would tend to nullify all constitutional limitations upon legislative power. ' 9' 9 "This clause is a restraint on Congress as well as on the executive and judicial powers of the National Government; it cannot be so construed as to leave Congress free to make any process it chooses 'due process of law.'

o00

"It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence."''1 1 "[A] constitutional power cannot be used by way of condition to attain an unconstitutional result."' 0 2 Thus, it is clear that if Congress had required, explicitly or implicitly, that the Executive Branch expend Federal funds "to attain an unconstitutional result"--the denial of due process and equal protection of the laws to Negroes through the support of segregated institutionssuch a Congressional requirement would be unconstitutional and would be declared judicially void at the earliest opportunity. 3. Executive May Treat Such Statutes as Silent on Segregation Question Since the purpose and intent of the "separate but equal" clauses is to support segregation and discrimination, the courts will (and the executive may) strike it out of the legislation. 3 These clauses do not bind the President. He is neither required nor permitted to violate his oath of office by enforcing an unconstitutional provision of the statutes. He is not required to wait for Congress to repeal or amend the ob96. Boiling v. Sharpe, supra note 94 at 500. 97. Brown v. Board of Education (Implementing), 349 U.S. 294, 298 (1955). 98. Cooper v. Aaron, 358 U.S. 1, 19 (1958). 99. United States v. Butler, 297 U.S. 1, 74 (1936). 100. Den ex. dent. Murray v. Hoboken Land & Improvement Co. 18 How. (59 U.S.) 272, 276 (1856). 101. Frost v. R.R. Comm. of California, 271 U.S. 583, 594 (1925). 102. Western Union Telegraph Co. v. Foster, 247 U.S. 105, 114 (1918). 103. Purpose and intent have always been a proper matter for judicial inquiry. Guinn v. United States, 238 U.S. 347, 363-364 (1915); Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D.La. 3-judge court, 1960), aff'd 364 U.S. 500 (1960).

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jectionable, void clauses, nor is he required to wait for a court declaration of their invalidity. He may disregard them.' He may read the objectionable clauses as indicating Congressional intent to follow the Supreme Court's current interpretation of the Constitution and hence authority to withhold funds from segregated institutions, or he may treat the statutes as silent on the question of racial segregation (and withhold funds under other sections of the statutes or his broad Presidential powers). IV. CONSTITUTIONAL POWERS AND DUTIES OF THE PRESIDENT Presidential authority to withhold these funds is not dependent on construction of the grant-in-aid laws alone. Such authority may be found, too, in the express and implied constitutional powers of the President. A. TH Expp xss Powals The President's express powers are spelled out in Article II of the Constitution, which vests him with "the executive power;" 1° 5 requires an oath that he will "faithfully execute the office of President" and "preserve, protect and defend the Constitution;"' 0 ° and that "he shall take care that the laws be faithfully executed.' 0 7 These clauses authorize the President to execute both the Constitution and the laws. 8 1. To Execute the Constitution His oath of office requires the President to execute both the Fifth and Fourteenth amendments to the Constitution. The Fifth Amendment, of course, binds all executive officials, as well as Congress and the courts, 0 9 although it does not mention any of the three branches. Despite the fact that the Fourteenth Amendment empowers Congress to "enforce" its provisions and does not mention either the Supreme Court or the President, neither the court nor the President is barred from acting against segregation under the Fourteenth Amendment (and the Fifth Amendment) .110 104. See precedents and cases cited in footnotes 134-164 and accompanying text. See also cases cited in 30 A.L.R. 390, particularly Van Horn v. State, 46, Neb. 62, 64 N.W. 365, 383 (1895), where a state court held that even ministerial officers are "not bound to obey an unconstitutional statute."

105. § 1.1. 106. § 1.8. 107. § 3. 108. In re Neagle, 135 U.S. 1 (1890). 109. 16 cj.S. Constitutional Law § 554. 110. For helpful discussion, see Schubert, The Presidency in the Courts 347-48, 1957, and

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The discretionary right of the President to withhold funds from segregated institutions is our primary concern, but recent decisions indicate that he has not only a right, but a positive duty not to commit violations of the Fifth Amendment and not to permit violations of the Fourteenth Amendment by providing funds for an illegal activity.' "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it," said the Court." 2 "[I]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal" President." 3 The impropriety of Federal participation in activity that state agencies may not constitutionally conduct was also made clear in the restrictive covenant cases." 4 The Shelley case" 5 established that a state court violates the equal protection clause of the Fourteenth Amendment when it enforces contractual provisions barring the ownership or use of land by specified racial groups. In the Hurd case which barred enforcement of such provisions by the Federal courts of the District of Columbia, even though they are not bound by the provisions of the Fourteenth Amendment, the Court said: 16 It is not consistent with the public policy of the United States to permit federal courts in the Nation's capital to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the guaranty of the equal protection of the laws. These same restrictions apply not only to Federal court action enforcing private agreements but also to Federal executive action financing unconstitutional "state action." The Constitution is color-blind," 7 but the President cannot blind himself to constitutional violations. He can not subsidize subversion by supporting segregation with Federal funds. 2. To Execute the Law To sustain the Chief Executive's authority to withhold Federal grants from segregated institutions, further power may be derived from the Swisher, The Supreme Court in Modern Role 160-62, 1958. Cf. Hand, The Bill of Rights, The Oliver Wendell Holmes Lectures 54-55, 1958. 111. Brown v. Board of Education, 349 U.S. 294, 298 (1955) ; "All provisions of federal, state, or local law requiring or permitting such discrimination must yield . . ." "Permit" means not only to expressly agree, but "to acquiesce, by failure to prevent . . . the doing of an act." Black, Law Dictionary 1298 (4th ed., 1957). 112. Cooper v. Aaron, 358 U.S. 1, 18 (1958). 113. Bolling v. Sharpe, 347 U.S. 497, 500 (1954). 114. Shelley v. Kraemer, 334 U.S. 1; Hurd v. Hodge, 334 U.S. 24 (1948). 115. Shelley v. Kraener, supra note 114. 116. Hurd v. Hodge, supra note 114 at 35-36. 117. Justice Harlan coined the phrase in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U.S. 537, 559 (1896).

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constitutional requirement that he "shall take care that the laws be faithfully executed. '"' 18 Encompassed within the President's "executive powers" are the spending of public funds and the execution of public contracts, both of which are involved in the administration of Federal grants-in-aid. a. Expenditure of Public Funds "No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time," says the Constitution." 9 Since only the executive branch can "draw" money from the Treasury and publish an accounting of the funds, this provision . ..assumes that expenditure is primarily an executive function, and conversely that the participation of the legislative branch is essentially for the purpose simply of setting bounds to executive 20 discretion, a theory confirmed by early practice under the Constitution. The executive power to withhold funds, unless specifically earmarked in a constitutional, special act for the benefit of a particular individual, has been upheld by the courts on many occasions. 2' Even when the appropriation was clearly earmarked, Presidents frequently have refused to expend funds.'2 That Congress itself views its appropriations as "only a ceiling," not a mandate, for executive spending was established in 1950, when it inserted the "reserve power" in the Anti-Deficiency Act, 12 3 directing Federal administrators "to expend as little as possible out of the funds appropriated."' 12 4 Thus, presidential action to enforce non-discriminatory 118. U.S. Const. Art. II, § 3. 119. Id. at art. I, § 9.7. 120. Corwin, The President: Office and Powers 127-28 (5th ed., 1959). 121. Campagna v. United States, 26 Ct. C1. 316 (1891); Hukill v. United States, 16 Ct. Cl. 562 (1881). And see Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524, (1838). 122. In 1923, President Harding ordered the War Department to keep expenditures on

rivers and harbors within the amount fixed by the Budget Bureau and to ignore an additional appropriation by Congress. The New York Times, February 11, 1923. In 1949,

President Truman ordered that funds appropriated for building 58 air groups should be expended only to provide for the 48 air groups he had recommended. Powers of the President as Commander-in-Chief, H.R. Doc. No. 443, 84th Cong. 2d Sess. (1956). In 1956, the Defense Department shelved a Congressional appropriation earmarked for construction of 20 superfort bombers. Corwin, op. cit. supra note 120 at 134. And see Griffith, Congress: Its Contemporary Role 28 (1951). 123. 31 U.S.C. 665(c) (2).

124. H.R. Rep. No. 1797, 81st Cong., 2d Sess. (1950).

66

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policies may be justified on purely economy terms: separate facilities are expensive.12 5 b. Execution of Government Contracts A Federal grant-in-aid agreement is a contract between the national government and the aid recipient.12 6 As such, it falls within the contracting power of the Federal government. Over the years, four broad principles have emerged regarding the Federal contracting power. First, the United States, even without statutory authorization, has the 1 27 right to contract and to enforce performance of the contract. Second, the Federal contracting power lies in the executive branch 1 28 of the national government. Third, in executing the contracting powers of the Federal government, the President may impose sweeping terms and conditions on would-be beneficiaries of Federal funds. 2 9 The key case was Perkins v. Lukens Steel Co.3 The Public Contracts Act requires those who sell goods to the government to comply with certain requirements concerning labor, and authorizes the Secretary of Labor to interpret the statute in determining wages. Error in the executive determination of the contract stipulation, rather than invalidity of the Congressional enactment, was claimed by the plaintiffs and relied on by the Court of Appeals in granting injunctive relief. In reversing, the Supreme Court held that "the Government enjoys the unrestricted power . . . to fix the terms and conditions upon which it will make needed purchases," and even if the Secretary of Labor had violated Congressional instructions in exercising the complete discretion of the executive branch, she was responsible only to "superior executive and legislative authority." The logical conclusion of the Lukens case is that the executive may even include contract pro125. See, Hearings on S.1732 and S. 531 before Senate Committee on Labor and Public Welfare, 82nd Cong., 2d Sess. 341 (1952); Office of Assistant Secretary of Defense, Manpower and Personnel, Integrationin the Armed Services: A ProgressReport 9 (1955). 126. McGehee v. Mathis, 4 Wall. (71 U.S.) 143 (1866). 127. Dugan v. United States, 3 Wheat. (16 U.S.) 172 (181t). 128. United States v. Tingey, 5 Pet. (30 U.S.) 115 (1831). In this case, the Attorney General had argued that in the performance of the trust enjoined on him by the "take care" clause, the President "not only may, but . . . is bound to avail himself of every appropriate means not forbidden by law"; while the court does not advert to this contention, the "immediate and inevitable result of its holding was the location in the executive department of the power that it ascribed to the United States Government in its corporate capacity." Corwin, The President: Office and Powers 148-49 (5th ed., 1959). 129. This was foreshadowed by the Supreme Court's approval of terms in contracts between state governments and private contractors which it held were unconstitutional when required in private business. Compare, e.g. Lochner v. New York, 198 U.S. 45 (1905) with Atkin v. Kansas, 191 U.S. 207 (1903). See also Heim v. McCall, 239 U.S. 175 (1915). 130. 310 U.S. 113 (1940).

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visions which contravene an express Congressional mandate, and no

potential contractor can complain. 131 If he doesn't like the President's terms, he need not apply.' Fourth, a Federal grant to a state subject to conditions is a contract,

which cannot be violated by any state legislation contrary to the stipulated terms. This point was established in 1866, when the Supreme

Court held unconstitutional a state levee tax, imposed in violation of the Federal land-grant agreement.' 33 Said the Court: It is not doubted that the grant by the United States to the State upon conditions and the acceptance of the grant by the State, constituted a contract. All the elements of a contract met in the transaction-competent parties, proper subject matter, sufficient consideration and consent of minds. This contract was binding upon the State and could not be violated by its legislation without infringement of the Constitution. These contract cases fully sustain the President's power to require inclusion of the non-discrimination clauses in the grant agreements and to withhold Federal funds from those who refuse to abide by the Government's terms. B.

THE "IMPLIED" POWERS

Ample authority exists within the Federal grant-in-aid statutes and his express constitutional powers for the President to require a nondiscrimination agreement from would-be recipients and to withhold grants from segregationists. But, if it be contended that the Constitution does not expressly authorize the President to "make a law" where Congress is silent, to disregard a law which he feels is unconstitutional, or to enforce the "public policy" of the United States, appropriate precedent for his acts may be found in the "implied" powers of the Presidency. Whether the powers of the President not specified in a statute or the Constitution are termed "implied," "inherent," "residual" or "prerogative" 131. See Pasley, The Nondiscrimination Clause in Government Contracts, 43 Va. L.R. 837, 856 (1957). In other recent cases, the Supreme Court has upheld the broad contracting power of executive officers, even where violations of statutes were alleged, Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 (1949); Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945). In the exercise of contractual powers an officer of the Federal government is not restricted by the requirements of procedural and substantive due process (as he is when exercising governmental or non-contractual powers). United States v. General Petroleum Corp. of Calif., 73 F. Supp. 225, (D.C.S.D. Calif. 1947), aff'd in Continental Oil Co. v. United States, 184 F.2d 802 (9th Cir. 1950). 132. Even when the government is acting in its proprietary capacity, however, it may not discriminate along racial or religious lines. At least Congress may not "enact a regulation providing that no Republican, Jew or Negro shall be appointed to Federal office..." United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947). 133. McGehee v. Mathis, supra note 122.

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is sterile semantics. Whatever they are called, "they are a part of the panoply of authority of the presidential office... . , are derived from a variety of sources, and have been confirmed by the Supreme Court under the nomenclature of "implied" powers. 188 Just as Congress, 3 " and the Supreme Court, 8" have implied powers not spelled out in so many words in the Constitution, so does the President have implicit authority to carry out his constitutional powers. 88 As Justice Miller said in the famed Neagle case, 180 the President's duty to see that the laws are faithfully executed is not limited "to the enforcement of acts of Congress or of treaties of the United States according to their express terms," but includes "the rights, duties and obligations growing out of the Constitution itself, our international relations and all the protection implied by the nature of the Government under the Constitution." [Emphasis added.] 1. Making a Law Where Congress Is Silent Executive legislation-orders, proclamations, interpretations-is part of the "supreme law of the land." 40 The President's duty "to take care that the laws be faithfully executed" becomes often a "power to make the laws," says a noted constitutional authority, adding: "Nor was this unforeseen by the Framers.'' In the melodramatic leading case, In re Neagle, 4 2 the Supreme Court held that an executive order of the President was a "law of the United States," and that executive power embraced power not specifically granted in the Constitution or by statute. Less dramatic, but equally decisive, have been other court decisions upholding presidential orders as a source of law binding on both citizens and courts. 4 3 Significantly, when acts of Congress have conflicted with 134. 135. 136. 137. 138. 139. 140.

Schubert, The Presidency in the Court 353 (1957). In re Neagle, 135 U.S. 1, 64 (1890). McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819). Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803). In re Neagle, supra note 135. Ibid. Schubert, The Presidency in the Courts 311 (1957): "There would seem to be little

question of the judicial rule today: executive legislation is law. It can collect money from those who would be liable under a statute; it can cause people to be put in jail; it can cause some people to be shot. Any theory that cannot accommodate these facts has, on this ground alone, outlived its usefulness." 141. Corwin, The Constitution and What It Means Today 125 (12th ed., 1958). 142. I,z re Neagle, supra note 135 at 64. 143. E.g, Albridge v. Williams, 3 How. (44 U.S.) 9 (1845); United States v. Freeman, 3 How. (44 U.S.) 556 (1845); United States v. Midwest Oil Co., 236 U.S. 459 (1915).

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the President's exercise of his constitutional powers, the Supreme Court

1 44 has even gone so far as to declare the acts of Congress unconstitutional.

2.

Disregardingan UnconstitutionalLaw Governmental power in the United States is distributed by the Constitution among three co-equal branches of the Federal government, one of which is the Presidency. Whatever may have been the intention of the framers, the actual operation of the government has shown that powers vested in one branch frequently overlap those vested in another.

Not the principle of separation of powers, but the principle of checks by one branch of government on the other has governed our nation.

While Congress controls the executive in a variety of courts also have checked the President,

14

7

ways, 4 6

45

and the

he, too, has powers implied

from his constitutional status. He is not required to enforce an unconstitutional statutory provision-particularly where the Supreme Court

has declared "all provisions of Federal, state and local law" requiring or permitting segregation to be unconstitutional. 48 Whether or not the President's disregard of an act of Congress which

he felt was unconstitutional is "morally justified,"'149 the fact is that: Presidents have occasionally refused to enforce acts of Congress ... on the ground that the acts in question were unconstitutional. This was Andrew Johnson's contention in 1867 respecting the Tenure of Office Act; as it was Woodrow Wilson's respecting the Jones Shipping Act of 1920.1r1 3.

EnforcingPublic Policy of the United States The public policy of the United States is, in the words of the Supreme Court, "manifested in the Constitution, treaties, Federal statutes and 144. E.g., Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867); United States v. Klein, 13 Wall. U.S.) 128 (1871); Armstrong v. United States, 13 Wall. (80 U.S.) 154 (1872). 145. (80 Davis, Administrative Law Text, 29-30 (1959). ("... danger of tyranny or injustice lurks in unchecked power, not in blended power.") 146. In 1942, OPA policies were altered through Congressional influence which brought about a change of administrators. Congressional investigating committees engage in a substantial amount of supervising. Appropriation committees are influential; in their reports are "mingled many shades of suggestions, of precise recommendations, of doubts, of warnings, of commendations and of rebukes." McMahon, Congressional Oversight of Administration: The Power of the Purse, 58 Pol. Soc. 161, 380 (1943). 147. In all United States history, the courts have held presidential orders unconstitutional in only 14 cases, Schubert, op. cit. supra note 140 at 355. But cf. Justice Stone's comment in United States v. Butler, 297 U.S. 1 (1936) at 87: "Courts are not the only agency of government that must be assumed to have the capacity to govern." 148. Brown v. Board of Education (Implementing), 349 U.S. 294 (1955). 149. Compare Schubert, op. cit. supra note 140 at 326; and Corwin, The Constitution and What It Means Today, op. cit. supra note 141, at 98, with Hart, The Ordinance-Making Powers of the President of the U.S. 177 (1925). 150. Corwin and Koenig, The Presidency Today 58 (1958).

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applicable legal precedents,"'' 1 as well as "the course of administration and decision." " 2 Not only the court, but the President has a right, if not a duty, to execute the public policy of the United States. Evidencing the public policy of the United States in opposition to discrimination and in support of the President's proposed executive order requiring a non-segregation agreement as a condition for the receipt of Federal grant-in-aid funds are other statutes, treaties and administrative decisions. Beginning with the Civil Rights Acts of the Civil War 5 8 and continuing through the Civil Rights Act of 1960,11" and even the Peace Corps Act of 1961,"' a consistent thread of hostility to racial discrimination runs through the laws passed by Congress. At least 33 such statutes were 57 on the books a few years ago' and one tabulator has pointed out that Congress on at least 23 different occasions in the years 1933-1944 outlawed racial and religious discrimination in legislation for public works projects, the Civilian Conservation Corps, unemployment relief, civil service classification, National Youth Administration, and other acts. Treaties and executive agreements negotiated by the President have the force of law.' 58 They may be enforced by the Chief Executive. But, even if not self-executing, they are expressive of the public policy of the United States, which is a party to at least ten treaties and international agreements to observe "human rights and fundamental freedoms for all without distinction as to race." 59 151. Hurd v. Hodge, 334 U.S. 24 (1948). 152. License Tax Cases, 5 Wall. (72 U.S.) 462, 469 (1867). 153. See, e.g., § 20 of the Criminal Code (U.S.C., Title 18, § 52; R.S. § 5510, Mar. 4, 1909, c. 321, § 20; 35 Stat. 1092); for an extensive review and application of the civil rights acts, see Monroe v. Pape, 81 S. Ct. 473 (Feb. 20, 1961). 154. P.L. 86-449, 74 Stat. 86. And cf. Hannah v. Larche, 363 U.S. 420 (1960), upholding constitutionality of Civil Rights Act of 1957, P.L. 85-315, 85th Cong., Sept. 5, 1957, 71 Stat. 634. 155. P.L. 87-293, 75 Stat. 612 (Sept. 22, 1961). 156. Acts of Congress which embody our national policy of hostility to racial discrimination include 12 Stat. 805; 13 Stat. 329, 351, 537; 14 Stat. 27, 379, 457; 16 Stat. 3, 67, 140; 18 Stat. 336; 21 Stat. 44; 40 Stat. 1201; 48 Stat. 23; 50 Stat. 320, 357; 52 Stat. 815; 53 Stat. 856, 937, 1148; 54 Stat. 593, 623, 1214; 55 Stat. 363, 405, 491; 56 Stat. 575, 643; 57 Stat. 153; 58 Stat. 536, 874; 59 Stat. 473; 60 Stat. 1030. 157. 90 Cong. Rec., Part 10, p. A3325 (1944). 158. Missouri v. Holland, 252 U.S. 416 (1920); United States v. Curtiss-Wright Export Corp., 299 U.S. 304. In the latter case, Justice Sutherland, speaking for the Court, said at

318: "The power . . . to make such international agreements as do not constitute treaties in the constitutional sense . . . none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the concept of nationality. This the Court recognized, and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations." 159. Treaties and executive agreements to which the United States is a party and which express our policy against racial discrimination include: the Charter of the United Nations,

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Similarly expressing the public policy of the United States and establishing precedents for executive action to withhold Federal grants from

segregated institutions are the actions of a number of Federal executive departments who acted to change their policies after the Supreme Court's

1954 decision. Without any.further legislation by Congress, these Federal agencies have barred segregation in interstate travel, 160 in use of Federal land grants,' 0 ' in bank home loans, 62 and in employment on

private rural electrification construction projects. 64 While many of these policies have not been effectively enforced, they not only establish precedents for the right of the Federal Government to require non-discrimination in its own programs and in those to which it contributes financial assistance, but they are also expressive

of the current public policy of the United States. 4.

The Court Has Not Limited "Implied" PresidentialPower in This Field

Over the years some court decisions have been interpreted as restricting the "implied" powers of the President, but none would inhibit Presi-

dential authority to require seekers of Federal grants-in-aid to agree to non-segregated use and to withhold funds from recalcitrant recipients.6 5 The essential difference between these earlier decisions and a 59 Stat. 1031, 1045-46, 1213; Potsdam Agreement, Aug. 2, 1945; Treaties of Feb. 10, 1947, with Italy, Rumania, Bulgaria and Hungary (93 Cong. Rec. 6307, 6567, 6573, 6578); Resolution 41 of March 7, 1945, at Inter-American Conference on War and Peace at Mexico City which adopted the Act of Chapultapec (Dept. of State Pub. 2497, p. 109); The American Declaration of Human Rights, Resolution 30, Final Act of the Ninth International Conference of American States, Bogota, Colombia, 1948; the Universal Declaration of Human Rights, adopted by the United Nations General Assembly, Dec. 10, 1948. 160. See, e.g., 49 C.F.R. 180a, (Sept. 28, 1961) (I.C.C. regulation barring segregation in any common carrier or terminal facility). And see earlier abandonment of "separate but equal" rule in N.A.A.C.P. v. St. Louis-San Francisco Ry. Co., 297 I.C.C. 335, 1 R.R.L.R. 63 (1955); Keys v. Carolina Coach Co., 64 I.C.C. 769, 1 R.R.L.R. 272 (1955). 161. U.S. Department of Interior, Information Service Press Release, May 31, 1961; see also Leadership Conference on -Civil Rights, Proposals for Executive Action to End Federally Supported Segregation and Other Forms of Rccal Discrimination,Aug. 29, 1961, p. 15. 162. Federal Home Loan Bank Board, Resolution No. 14656, June 1, 1961, New York Times, Oct. 4, 1961, p. 1. 163. REA, Loan Contract Form "L.C.," revised Sept. 30, 1953. 164. See, e.g., the 1948 regulation of the Office of Vocational Rehabilitation and the Office of Education, prohibiting discrimination in Federally assisted vocational programs, 45 C.F.R. 120.18, 401.14(2). President Kennedy's Executive Order 10925, 26 Fed. Reg. 1977 (March 6, 1961), prohibiting discrimination in government employment and on work performed under government contract, was an attempt to put enforcement "teeth" in these Federal policies. 165. See, e.g., Little v. Barreme, 2 Cranch (6 U.S.) 170 (1804) (Congress passed embargo act, but President ordered vessel seized in port not covered by Act); United States v. Clarke, 20 Vall. (187 U.S.) 92 (1874) (private citizen claimed President's proclamation of un-

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possible future case involving Presidential withholding of grants is that in all such prior cases the President was acting adversely in a field where Congress had the constitutional power to act, while here Congress is barred by the Constitution from enacting a pro-segregation law. 10 For example, in Kendall v. United States ex rel. Stokes, 1 7 Postmaster General Kendall, at President Jackson's instigation, refused to pay money the United States owed Stokes for delivering mail. Congress then passed a special act ordering payment, but when Kendall still refused, Stokes sought and obtained mandamus. Unlike Kendall, the President would have ample discretionary authority under the statutes to withhold funds. The Federal grant-in-aid statutes are general; they are not, as in the Kendall case, special acts appropriating funds specifically for a particular individual. Even in the Kendall case, the court pointed out that the President and his administrator need not comply with a statutory duty which is "repugnant to any rights secured and protected by the Constitution."'168 There is little doubt that Federal funds to support segregated facilities are clearly "repugnant" to the Constitution. 00 In the more recent case of Cole v. Young, 70 the Supreme Court held that a Presidential executive order authorizing the discharge of incumbents in non-sensitive positions without the right of appeal had violated the Veterans Preference Act' and was illegal. In a footnote, however, the court pointed out that its decision might be different if President Eisenhower had asserted "his independent power against that of Con2 gress" rather than rely solely on the statute. Finally, the Steel Seizure case 173 is sometimes cited as restricting Presidential "inherent" or "implied" power, but every thoughtful constitutional authority who has analyzed the various decisions in that 1952 case has come to the conclusion that, if anything, the majority of the 174 justices have confirmed the "inherent" powers of the Presidency. conditional amnesty repealed the Confiscation Act of 1862, which Court held Congress had power to enact). Copper v. Aaron, 166. Brown v. Board of Education (Implementing), supra note 1,18; 358 U.S. 1 (1958); Boiling v. Sharpe, 347 U.S. 497 (1954). 167. 12 Pet. (37 U.S.) 524 (1838). 168. Id. at 610. 169. Brown v. Board of Education (Implementing), supra note 148. 170. 351 U.S. 536 (1956). 171. 5 U.S.C. 652.

172. Cole v. Young, supra note 170 at 557 n.20: "When the President expressly confines his action to the limits of statutory authority, the validity of the action must be determined solely by the congressional limitations which the President sought to respect, whatever might be the result were the President ever to assert his independent power against that of Congress." 173. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). 174. See e.g., Antieau, Commentaries on the Constitution of the Uniteed States 303-4

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In an effort to halt a threatened steel strike which he claimed would jeopardize our national defense effort, President Truman had ordered the Secretary of Commerce to seize the steel factories and to operate them. The President based his order on his power as commander-inchief of the armed forces and the "executive power" of the President. When the steel companies sought to prevent the seizing of their properties, the Court held that in the absence of Congressional authorization and in view of the fact that Congress had clearly intended not to grant such authority, the Constitutional provisions conferred no such power on the President. 175 The prime reason for the decision was that Congress had weighed seizure and rejected such a solution. 7 6 Notwithstanding Justice Black's view "for the Court," it would be highly misleading to cite this case as holding against the President's right to exercise implied constitutional powers. 1 77 On the contrary, five members of the Court explicitly affirmed their acceptance of the theory of implied presidential powers; two members of the Court reserved the question, 7 ' and only two held against such a theory, and then only insofar as it would justify the President's action in this particular case. 79 In the words of the concurring opinion of Justice Jackson: 8 0 When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. All the opinions seizure would have dent had enjoyed As Justice Jackson

made it perfectly clear, moreover, that presidential been upheld unanimously by the Court if the Presithe support-or even the neutrality-of Congress. put the matter:' 8 '

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be (1960) ; Schubert, The Presidency in the Courts 248-251, 284-286, 290-294 (1957) ; Corwin and Koenig, The Presidency Today 41-44 (1958). 175. Youngstown Sheet and Tube Co. v Sawyer, supra note 173.

176. 177. 178. 179. 180. 181.

Antieau, op. cit., supra note 174 at 303. Schubert, op. cit., supra note 174 at 284. Justice Frankfurter, 343 U.S. 579, 597 (1952), and Justice Burton, id. at 659. Justice Black, id. at 584, 587-8, and Justice Douglas, id. at 631, 633. Id. at 635-7. Ibid.

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worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. In the third category of Presidential-Congressional conflict formulated by Justice Jackson, we see clearly the essential difference between the Steel Seizure case and the proposed Presidential executive order. Said Jackson:' 8 , When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. [Emphasis added.] The distinguishing point is that Congress could constitutionally provide for seizure of steel plants; it considered the question, but refused to adopt that solution for national emergency strikes. However, Congress could not constitutionally require the President to spend Federal funds in support of segregated public schools or other functions encompassed within "state action." By the Fifth Amendment, Congress is disabled "from acting upon the subject."'8 3 C.

THE COURT'S "IMPLEMENTATION" DECISION PRESIDENTIAL POWER

DI

NOT LIMIT

As we have seen, no decision dealing with the powers of the Presidency has limited in any way the President's power to issue the proposed proclamation. Similarly, no case dealing with segregation has retarded presidential power. Wholly unwarranted are contentions that the Supreme Court's 1955 "implementation" decision,' 84 directing the Federal district courts to enter appropriate decrees admitting Negro students "to public schools on a racially non-discriminatory basis with all deliberate speed," has somehow limited Presidential power to act against segregation. A careful reading of the Court's language fails to disclose a single 182. Ibid. 183. There are, of course, other distinctions between the proposed Presidential executive order and seizure of the steel mills. In the latter case, the President was interfering with vested private property rights; in the former he would be withholding public funds in which there are no vested rights. In the Steel case, the President was opposing Congress without the support of the courts; here he might be in conflict with Congress, but he would be acting in direct support of constitutional decisions and orders of the Supreme Court. In the Steel case, he relied on "executive power" alone; here he would be using the full panoply of Presidential powers, including executive interpretation of the statutes immediately involved, as well as his express and implied powers under the Constitution. 184. Brown v. Board of Education, 349 U.S. 294 (1955).

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word that requires the President to continue to supply Federal funds to public school districts without regard to whether or not they are violating the requirements of the Federal Constitution. On the contrary, the Court emphasized at the threshold of its decision that "all provisions of federal, state and local law requiring or permitting" segregation in the public schools must yield to the constitutional standard barring such discrimination. 1 15 The expression "with all deliberate speed" was neither meant to delay integration of public schools indefinitely, nor limit the President in his administration of Federal grants-in-aid. The phrase originated in Virginia v. West Virginia,8" an opinion by Justice Holmes in 1912, who wrote: ,. . a State cannot be expected to move with the celerity of a private business man; it is enough if it proceeds, in the language of the English Chancery, with all deliberate speed. 8 In the School Segregation cases,' 8 7 as in Virginia v. West Virginia,is the Supreme Court concluded that it was unreasonable to expect immediate action from state officials "where those officials did not control all the state processes necessary to achieve full compliance." 89 In the Brown case, however, the Court's orders were directed to local school authorities, where "deliberate" speed was needed, in the words of the

Court, 190 to * . . consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems ...

Since Federal authorities are not charged with "administration" of local schools and have nothing to do with the solution of these local problems, but are charged solely with the duty of determining whether or not Federal grants-in-aid shall be given to local or state institutions which have not taken a single step toward "good faith compliance" with the constitutional requirements, the delays allowed local officials under 185. Id. at 298. 186. 222 U.S. 17, 19 (1911). Following a Supreme Court determination that West Virginia owed a sum of money to Virginia, the latter sought an order compelling immediate payment. The motion was denied by a unanimous court. 187. Brown v. Board of Education, supra note 184. 188. Supra note 186. 189. Blaustein and Ferguson, Desegregationand the Law 220 (1957). 190. Brown v. Board of Education, supra note 184 at 300.

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the Court's ruling do not apply to the Federal administrators of the Federal law. In its "implementation" decision, the Supreme Court was talking about "courts of equity" and their traditional powers. The President of the United States is not a court of equity. V.

COURTS WILL UPHOLD PRESIDENTIAL ACTION In effect, we have been looking at what the courts will do if a case of Presidential withholding of grants-in-aid from segregated institutions ever reached them. To see how far the President can go in ending segregation, we have viewed how far the courts have gone. However, since the powers of the executive are independent of those of the courts, it is necessary to recognize that the frontier of presidential power lies far beyond the point to which the courts have thus far ventured.

A. THE COURT WILL NOT REviEw PRESIDENTIAL WITHHOLDING OF GRANTS It is doubtful that the Supreme Court will ever review on the merits a case involving Presidential withholding of Federal aid. First, since Federal spending legislation ordinarily carries no provision for judicial review,""' litigants, such as taxpayers, 1 2 citizens, 193 states,0 4 and school districts,'9 5 have no "standing to sue." Second, the courts will not issue a mandatory injunction against the President,'0" the real party in interest whose executive order would have directed his subordinates to withhold the funds. Third, a suit against the President's administrators would collide with the doctrine of sovereign immunity.9 7 The United States cannot be sued without its consent. 191. The Hill-Burton Hospital Construction Act, 42 U.S.C. 291j(b), and the Federal Aid to Impacted Areas Education Act, 20 U.S.C. 641(b), provide for "judicial review" of executive withholding of grants. Two other education statutes (See notes 60 and 83) provide for appeal to Congress of the administrator's withholding of funds. 192. Frothingham v. Mellon, 262 U.S. 447 (1923). This rule has prevented challenges in the courts of existing Federal aid to segregated institutions. 193. Easter v. Eisenhower, 24 U.S. Law Week 3282, cert. den. 351 U.S. 908 (1956) (citizen's attempt to compel President to enforce immediate racial desegregation dismissed for lack of jurisdiction). 194. Massachusettes v. Mellon, 262 U.S. 447 (1923). 195. Dallas v. Edgar, 255 F.2d 455 (5th Cir. 1958). 196. Mississippi v. Johnson, 71 U.S. 475 (1866). When an administrative officer acts in the name of the President, it is assumed that the President has authorized him to do so. See 65 Stat. 712 (Act of Oct. 31, 1951), ch. 655, § 10; see also Porter v. Coble, 246 F. 244, 249 (8th Cir. 1917) ; Seltzer v. United States, 98 Ct. Cl. 554, 562 (1943). 197. See, e.g., Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945) ; Arizona v. Hobby, 221 F.2d 498 (1954); but cf. Ex parte Young, 209 U.S. 123 (1908), involving a state official.

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THE COURT WILL UPHOLD PRESIDENTIAL DISCRETION UNDER THE STATUTES

Assuming that these initial impediments to a suit could be overcome by a provision in the grant-in-aid statutes permitting judicial review of the administrator's action in withholding funds from a segregated institution, 9 8 such a suit would have to be based on contentions' 9 9 that the Federal grant-in-aid statutes impose a purely ministerial duty on the administrator and that the latter has no discretion, but is mandated under the act "to use the funds for that specific purpose."' Clearly, the functions to be exercised here are within the discretionary powers of cabinet members and other administrators.2 01 As we have seen, both the specific grant-in-aid statutes and the Constitution make clear that the executive branch is not charged with merely ministerial duties in the

administration of Federal aid programs. 0 C. AN INJUNCTION WOULD BE INEQUITABLE Finally, there is one overriding reason why the courts, even if they had the power to enjoin the President or his administrators, should not (and likely would not) exercise that power in this type of case. Historically, equity courts have refused their discretionary aid, where "the plaintiff is using the right asserted contrary to the public interest."2 3 The inevitable effect of such a court order would be to permit a litigant with "unclean hands"2 4 to receive Federal funds to maintain unconstitutional and illegal racial segregation. 0 5

Issuance of such an injunction would be contrary to the public policy of the United States. In the restrictive covenant cases, 20 " the Supreme 198. See supra, note 191. 199. An alternative contention might be that the statute relied on by the administrator is unconstitutional, but the party seeking funds under the statute is not likely to raise this argument. In any event, grants-in-aid are constitutional. Oklahoma v. U.S. Civil Service Commission, 330 U.S. 127 (1947). 200. McKay v. Central Electric Power Cooperative, 223 F.2d 623, 625 (C.A.D.C. 1955); Kendall v. United States, 12 Pet. (37 U.S.) 524 (1838). 201. School v. Derthick, 273 F.2d 319 (7th Cir. 1959); Clement Martin Inc. v. Dick Corp., 97 F. Supp. 961 (D.C. Pa. 1951); Arizona v. Hobby, supra note 197. 202. See footnotes 46-92 supra and accompanying text. 203. Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 492 (1942) and see, e.g., justice Frankfurter in United States v. Bethlehem Steel Corp., 315 U.S. 289, 312 (1942) (dissent): 11... the function of the judiciary is not so limited that it must sanction the use of the federal courts as instruments of injustice in disregard of moral and equitable principles which have been part of the law for centuries." 204. Memphis Keeley Institute v. Keeley Co., 155 F. 964 (6th Cir. 1907); Carmen v. Fox Film Corp., 269 F. 928 (2d Cir. 1920). 205. See, e.g., Ming v. Horgan, Sup. Ct., Sacramento County, Action No. 97130, June 23, 1958, 3 R.R.L.R. 693. 206. Shelley v. Kraemer, 334 U.S. 1 (1948) ; Hurd v. Hodge, 334 U.S. 24 (1948) ; Barrows v. Jackson, 346 U.S. 249 (1953).

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Court clearly established that the judiciary will not enforce acts which violate public policy or the equal protection of the laws by racial discrimination. "Once the courts put their imprimatur on such a contract, government, speaking through the judicial governmental branch, acts. 2 °7 It is unlikely that a challenge to the proposed Presidential Proclamation would be tolerated by the Supreme Court which wrote the 1954 School Segregation decisions, 08 which has consistently advanced the frontiers of freedom for non-white citizens unaided by executive leadership, and which decided five civil rights cases during its most recent 1960-61 term, all favorably to the person seeking constitutional relief against racial discrimination.° 9 In upholding Presidential action against segregation, the court will be fulfilling its historic function, as voiced by Justice Black in 1950: Under our Constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement ....No higher duty, no more solemn responsibility rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being 210 subject to our Constitution-of whatever race, creed or persuasion. VI. CONCLUSION President Kennedy can and should issue a new Emancipation Proclamation, requiring all seekers of Federal grants-in-aid to agree to nonsegregated use of the funds and withholding such aid from those who refuse to comply with the anti-bias proviso. Without further legislation by 'Congress, or waiting for the snail-like movement of adversary litigation in the courts, the President's proclamation would effectively implement the 20th Century constitutional doctrine outlawing state-sanctioned segregation. Presidential power to issue such an executive order lies not only in the Federal grant-in-aid statutes themselves, but in the express and implied Constitutional powers of the nation's Chief Executive. The courts will uphold Presidential action in this field. Such a proclamation would provide irrefutable proof to the world that America practices what it preaches-that "all men are created equal" and that they are "forever free." 207. Black v. Cutter Laboratories, 351 U.S. 292, 302 (1952) (dissent by justice Douglas). 208. Brown v. Board of Education, 347 U.S. 483; Bolling v. Sharpe, 347 U.S. 497. 209. Gomillion v. Lightfoot, 364 U.S. 339 (1960); Boynton v. Virginia, 364 U.S. 454 (1960); United States v. Louisiana, 364 U.S. 502 (1960); Monroe v. Pape, 81 S. Ct. 473 (1961); Burton v. Wilmington Parking Authority, 81 S. Ct. 856 (1961). 210. Chambers v. Florida, 309 U.S. 227, 241 (1940).

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