this, it should be emphasized, I am not suggesting that any sharp line can be drawn in constitutional matters between a "political" decision and a "legal" decision. Necessarily, the decisions taken by government involve both, whether those decisions be made by the judicial, executive, or legislative branch. In other words, the "policy" aspects of any constitutional question can be eliminated in even a judicial decision only by an indefensible fiction.)

One other matter deserves mention: The conclusions about presidential power in the field of appropriations would seem to hold true even though we may note an increasing use by Congress of devices by which it is sought to enable Congress to retain some control over specific expenditures. Ever increasingly, as Congress sees what it considers to be its constitutional prerogatives slipping away and executive hegemony rising, an effort is made to require certain decisions of administrators to be held in abeyance until approval is given by a congressional committee. In brief, this is the area of the so-called "come into agreement" provisions of statutes, many of which relate to expenditures by way of contract or grant. Can Congress so limit the executive power?

The short answer to that question is that Congress has done so in numerous instances, as a recent study by Professor Joseph P. Harris documents.118 However, the question of whether Congress can require the Executive to obtain approval from a congressional committee before the expenditure of funds by way of contract or grant has been and is considered by the Department of Justice to involve serious constitutional problems.

119

II. THE STATUTE: TITLE VI AND ITS IMPLEMENTATION

The constitutional context provides background for a brief look at some of the questions raised by title VI of the Civil Rights Act of 1964. Since enactment of the statute, federal agencies have drafted regulations implementing its provisions. While it is yet too

118 HARRIS, CONGRESSIONAL CONTROL OF ADMINISTRATION (1964). 11o In recent years, four Attorney Generals of the United States have held that legislative provisions vesting in Congressional Committees the power to approve or disapprove actions of the Executive Branch are unconstitutional. The Acting Attorney General now advises me that a provision vesting such power in a committee made up in part of Members of Congress stands on no better footing. Both such provisions represent a clear violation of the constitutional principle of separation of powers. This is the position taken in similar cases by President Eisenhower, President Kennedy, and by myself [President Johnson].

White House Press Release, Oct. 8, 1964.

early to be able to do more than pose some of the problems involved, some generalizations may be ventured even now. These include the following.

(1) Title VI was translated into regulations issued by executive agencies and departments beginning in December 1964— probably as speedily as a ponderous bureaucracy could be expected to move, particularly in light of the controversial nature of the subject matter. These regulations tend to follow a model developed by the Department of Health, Education, and Welfare.120 Of particular interest is the provision for obtaining "assurances" from recipients of federal financial assistance that the moneys will be expended "in compliance with all requirements" of non-discrimination on the basis of race, color, or national origin.121 These “assurances” (i.e., promises) are not expressly called for by the statute, but seem to be consistent with its provisions. That they are important may be seen in the announcement in late February 1965 that the Board of Education of the State of Mississippi had agreed to sign a compliance agreement. This will enable that state to continue to receive federal funds (at present on the order of 23 million dollars annually) for educational purposes and to be eligible for future grants. The Governor of Mississippi, in approving such action, acknowledged that "in the 28 years that the state has been accepting Federal funds it has 'come to depend upon' Federal aid."122 The economic leverage exerted by the federal government is indeed an awesome power, in its effects sufficient to have definite constitutional impact.

(2) During the past several decades it has become clear that the nature of the American system of federalism depends, insofar as governmental decisions are concerned, upon what Congress decides. Prior to the constitutional revolution of the 1930's the Supreme Court operated as the ultimate arbiter of federalism. But the flow of decisions which began with the Jones & Laughlin case, upholding the validity of the National Labor Relations Act, 124 has resulted in what may accurately be termed an unannounced abdica

130 29 Fed. Reg. 16298-16305 (1964).

131 29 Fed. Reg. 16299 (1964).

123

N.Y. Times, Feb. 26, 1965, p. 14, col. 1. Compare Schools in South Integrate to Bar Loss of U. S. Aid, N.Y. Times, March 7, 1965, p. 1, col. 6. 1 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

13 National Labor Relations Act, 49 Stat. 449 (1/35), 29 U.S.C. §§ 151-66 (1958).

tion of power in economic matters by the high bench in favor of the political branches, principally Congress, of the national government. The familiar history of that basic transformation need not be recounted here, except to note the shift in the judicial task in economic policies from interpreter of the Constitution to that of interpreter of statutes; while this does not mean that the Court has now given up its creative role, it does mean that it no longer operates as the "authoritative faculty of political economy”125 in this country.

127

The Civil Rights Act generally, and title VI in particular, also has enormous consequences for the nature of American federalism. It is for that reason that the statute may realistically be termed a fundamental constitutional decision; it makes constitutional law, just as does the Supreme Court in its decisions which update the Constitution of 1787 (and its amendments). No longer may it be said, as some are wont to do, that constitutional law is strictly a matter of judicial provenience. The Congress also makes constitu- · tional law, as in 1890 when the Sherman Antitrust Act126 was enacted, in 1946 with the promulgation of the Employment Act," and in 1964 in the Civil Rights Act.128 This is not to say that every congressional statute takes on the overtones of a constitutional amendment, but surely some do. Judicial acceptance of the new legislative posture perforce means that the remedy of those who disapprove is no longer in the Supreme Court, which no longer operates as an aristocratic censor of legislative programs (save as they touch in such areas as civil rights and civil liberties). We are back, thus, to Munn v. Illinois:129 the political branches are dominant in a government which increasingly accepts affirmative responsibilities in socio-economic matters.130

135 COMMONS, LEGAL FOUNDATIONS OF CAPITALISM 7 (1924).

136 26 Stat. 209 (1890), 15 U.S.C. §§ 1-7 (1958).

127

Employment Act of 1946, 60 Stat. 23, 15 U.S.C. §§ 1021-24 (1958). 198 See MCCLOSKEY, ESSAYS IN CONSTITUTIONAL LAW 183 (1957): "[T]he meaning of the Constitution is profoundly influenced by the actual course of legislative and executive action, . . . [and] constitutional interpretation is not a judicial monopoly."

120 94 U.S. (4 Otto) 113 (1877), in which the Court told a company complaining about price-setting that its remedy was legislative, not judicial.

130 I have called this the rise of the "Positive State" in previous papers. Miller, An Affirmative Thrust to Due Process of Law?, 30 GEO. WASH. L. REV. 399 (1962); Miller, Technology, Social Change, and the Constitution, 33 GEO. WASH. L. Rev. 17 (1964); Miller, The Public Interest Undefined, 10 J. PUB. L. 184 (1961).

(3) Another constitutional aspect of the Civil Rights Act, as seen both in title VI and generally, is the other side of the separation-of-powers rubric: cooperation rather than conflict among the three branches of the national government. This is the little noted feature of shared governmental powers-that the officials of the three branches must cooperate. Their "warfare," as Woodrow Wilson put it, "is fatal."131 This is particularly important in an age of proliferating government. With respect to the judiciary and the President, it has been a long and rough road from the perhaps apocryphal sneer of President Jackson ("Chief Justice Marshall has made his decision, now let him enforce it") to the employment by three modern Chief Executives of armed forces to enforce court orders. 132 So, too, with Congress: after remaining quiescent from the immediate post-Civil War period to 1957, the national legislature finally has stirred itself sufficiently to enact into statutory law what the Supreme Court had (in part) interpreted into the Constitution. Cooperation, rather than conflict, seems to be the norm of action within the three branches. This may be seen specifically in one requirement of title VI.

(4) Section 602 of the Civil Rights Act provides in part: In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.183

What this means is that Congress intends to keep a watchful eye upon the administration of title VI. The requirement is similar to other statutes which require "laying before the legislature" certain administrative actions before they become valid.134 The consequences are at least two-fold. First, by so intervening into the

181 WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 56 (1908).

iss On presidential power in this area, see Pollitt, Presidential Use of Troops to Execute the Laws: A Brief History, 36 N.C.L. REV. 117 (1958). See also Pollitt, The President's Powers in Areas of Race Relations: An Exploration, 39 N.C.L. REV. 238 (1961).

1378 Stat. 252 (1964), 42 U.S.C.A. § 2000d-1 (1964).

administrative process Congress is helping to break down some of the boundaries between legislation and administration, and thus is chipping away at the underpinning of the historical separation of powers. Second, the requirement means that the recipient, actual or would-be, of federal financial assistance is in effect given another avenue of review of administrative action. For if Congress does not like a proposed action terminating or refusing to grant money, it can exercise an "item veto in fact" by passing a statute.135 In addition, and perhaps of even more importance, it permits congressional committees to bring pressure to bear upon administrative officials, directly (as by requiring them to testify on the action) or indirectly (through ex parte communications to the administrator). The question, accordingly, may seriously be asked whether title VI does not accord too much "due process" to those receiving or asking for federal aid.

(5) At what point does due process become "undue"? The procedural safeguards in title VI run the gamut from attempted voluntary persuasion through administrative hearings and review to judicial review and finally to legislative review. All of these favor the recipient of or person seeking financial aid from the federal government. The victim of discrimination is given no such elaborate protection; in fact, the victim is not mentioned at all, in the statute or regulations, other than in the most general terms. Section 601 of the act provides that no person shall be excluded “from participation in" or "denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance" because of his "race, color, or national origin." But he is not given a cause of action by the statute to force compliance. However, the regulations do permit complaints to be filed with "the responsible Department official or his designee."136 An investigation is then to be made, hearings held if necessary, and administrative review within the department or agency effected. If an administrative finding is made that title VI has been violated, the order cutting off financial assistance cannot go into effect until the proposed order has been laid before the appropriate congressional committees for thirty days. Before the order can go into effect, finally, the recipient may seek judicial review.

135 See Cooper & Cooper, The Legislative Veto and the Constitution, 30 GEO. WASH. L. Rev. 467 (1962).

130 29 Fed. Reg. 16301 (1964).