Constitution to invade the basic rights of the individual regarding the rental, sale, or occupancy of his own dwelling house. For Congress to exercise such authority would require an express grant from the people through a constitutional amendment.

In the Civil Rights Cases, 109 U.S. 3 (1883), the Court held that the 14th amendment did not empower the Congress to prohibit owners of inns, carriers, and places of amusement from discriminating on account. of race. The 1964 Civil Rights Act, based in part of the 14th amendment, prohibits owners of certain places of public accommodation from discriminating on account of race. However, the Court upheld the constitutionality of the legislation on the basis of the commerce power rather than the 14th amendment. Only two of the Justices would have upheld the law on the basis of the 14th amendment. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964).

As to the commerce clause, the cases thus far decided support the principle that the Congress can prohibit racial discrimination under its commerce power and, of course, it has long been settled that the Congress can regulate interstate activities if they, in fact, have a substantial effect upon commerce. However, if the action of an individual homeowner in selling or renting a single-family dwelling can be reached under the commerce clause, there is no activity whatsoever which can be considered so private or so local that the Congress cannot regulate it. That is one of the basic difficulties with this law. cannot stand. The sale or rental of a private home by the owner thereof is so remote from any plausible or reasonable definition of commerce that I cannot conceive that the Supreme Court will ever hold that the Congress has the power to utilize the commerce clause to legislate against or restrict the purely private preferences or even prejudices of an individual homeowner in disposing of his dwelling. Senator ERVIN. Senator, if I decide to sell my home and I prefer to sell to a member of the Caucasian race in preference to a member of some other race, then I would be violating this law and subjecting myself to unlimited damages.

Senator STENNIS. It is very true.

I take the liberty of illustrating with the home Mrs. Stennis and I have in Mississippi which we built in 1930 and in which we have lived in continuously from September 1930 until this very hour. No Federal funds or any borrowed funds have ever been used in connection with this home; it has never been involved in interstate commerce beyond the shipment of its nails, wiring, roofing, and like materials. into the State 36 years ago, when the house was constructed. It is there that we reared our family; we live there now and expect to continue to do so. This dwelling has never been connected with a public use in any way, of course, and, in fact, is as personal and as private to us as are our noses on our faces. Further it is and has always been our home. Still, under this bill, if we should sell or lease this home, which we are not going to do; or if we should offer to sell or lease it and advertise it in the newspaper or on a bulletin board, or merely talk about it among our friends, we would not be able to make a valid sale or lease to someone of our choice, but would have to offer it without discrimination to all and everyone that might be interested, re

gardless of race or color or national origin. Further, if we should fail to let anyone know about a prospective sale, and sell it to someone of our choice, a friend or even a relative, we would run the chance of being investigated for having entered into a conspiracy to evade this law and run the chance of having the sale or lease set aside. That a thing like that could happen in America is disturbing to me. It has never been anything else than a home or used, occupied as a home by anyone except one family.

Another clear case of unconstitutionality is made with respect to vacant land, which is also covered by title IV provided it is offered for sale or lease for the construction or location of a residence upon it. It takes twisted logic, indeed, to conclude that this vacant property has moved in commerce or that the sale of it has a substantial effect upon

commerce.

Senator ERVIN. Senator, is it not true that real property has never moved in interstate commerce?

Senator STENNIS. This is direct proof, Mr. Chairman, and I call special attention to this as direct proof.

I would strongly recommend that those Senators whose States have already enacted fair housing laws containing well-thought-out exemptions and exclusions based upon local conditions give careful consideration to title IV. The Attorney General, in his testimony before the House Judiciary Subcommittee, candidly stated that, in effect, these exemptions and exclusions would be wiped out and nullified by this legislation. It is just a political thing and, in fact, the impression of this whole measure is political.

Now, Mr. Chairman, I would like to turn briefly to certain provisions of H.R. 14765, the companion House bill, as reported by the Judiciary Committee of that body. I refer to section 408 of the bill reported in the House, which would establish a so-called Fair Housing Board. As reported by the press, this section was approved by the House Judiciary Committee after its hearings had been completed, and, indeed, it was suggested during the last-minute rush to report the bill. Not one word of testimony or evidence of the implications of this section was received by the committee, and it is well known that the leadership hopes to bring the House bill directly to the floor of the Senate. Under these conditions, this subcommittee is the only committee that will have an opportunity to fully consider these added provisions.

An amendment added by the Judiciary Committee of the House of Representatives expressly excepted from the bill the sale or lease of a dwelling house by the owner thereof. This is direct proof on the face of the bill that the measure is not based on a civil right. If a principle of civil rights was involved and the bill is to be justified on this basis, it should apply across the board and without exception. This broad exception destroys every principle of the so-called equality base upon which the bill is said to rest. The change was made in an effort to gain votes for the bill.

As the members of this subcommittee know, section 408 of the Housereported bill establishes a Fair Housing Board and authorizes the Secretary of Housing and Urban Development to direct and supervise investigations of violations of title IV of the bill. In carrying

out such investigations, the Secretary is given the same investigative powers as are provided for the National Labor Relations Board; likewise, this section provides that the Fair Housing Board "shall conduct hearings and shall issue and enforce orders in the same manner" as does the National Labor Relations Board. This short provision. is a real "sleeper." What is the relationship or similarity of alleged discriminatory housing practices, which is the province of this bill, and labor-management relations, which is the province of the National Labor Relations Board? It seems to me that we could just as well give the Selective Service Board the same powers as are exercised by the Federal Communications Commission; or why not pattern the powers of the Federal Reserve Board along the lines of the Federal Trade Commission? There is just as much correlation between these agencies as could possibly exist between alleged discriminatory housing practices and our national labor policy.

Senator ERVIN. Senator, doesn't it also afford a mechanism by which the complainant and the Attorney General can have access to courts outside the community, because, under the National Labor Relations Act, the only judicial review is in the court of appeals rather than the district court?

Senator STENNIS. That is correct. That is my recollection. I am sure the Chair is right.

Here is a case where they did not even take time or the care to try it— try to spell out in the bill what powers this board was going to exercise, but just by reference, by cross-reference as we do in our files, or in a library, just incorporated all the precedents, procedures, the orders and powers they vest into one more powerful agency in our govern

ment.

Senator ERVIN. The 152 volumes of the National Labor Relations Board Reports and all of the decisions of the Federal courts in the field of labor relations would be binding precedent for the Fair Housing Board. They did not know what they were doing to the American people when they put this Fair Housing Board into the bill. Senator STENNIS. I agree with the Chair.

I suspect, Mr. Chairman, that the real reason for giving the Fair Housing Board powers similar to the National Labor Relations Board is that the latter agency and the courts have extended the Board's power to the most liberal interpretation possible. It is obvious that sponsors of the bill in the House shopped around to find the Board with the most far-reaching power, attained either by legislative act, precedents of the Board itself, or court decisions broadening its power. And the sponsors of the so-called Fair Housing Board want it to have the greatest possible power.

What are the implications of this power, Mr. Chairman? It seems clear that the Board could issue a cease-and-desist order against any person or firm about to sell a home or rent an apartment to an individual. Is it not conceivable that it could also order a bank or other lending institution to loan money to any individual even though the bank did not think such person was a sound financial risk? Could the Board find a realtor had discriminated against a prospective purchaser and order the realtor to provide housing for the person alleged to have been discriminated against until that person finds comparable

housing? These may seem to be extreme questions, Mr. Chairman, but I sincerely believe that the Board might assume such power under the broad and indefinite grant of section 408. Subsection (h) thereof provides that "a violation hereunder shall be treated in the same manner as an unfair labor practice Anyone who is at all familiar with some of the decisions of the NLRB in correcting what it believes to be an unfair labor practice can imagine what powers the Fair Housing Board may assume under this authority. The right of judicial review is no answer to this real possibility, Mr. Chairman, because a realtor or contractor or lender could easily be forced into bankruptcy before a final court decision is rendered.

These are serious questions, and I find it difficult to believe that anyone could suggest that a so-called Fair Housing Board be established with such vague and indefinite purposes and powers as is now proposed.

The real bug under the chip is that this short and seemingly harmless investiture of power grants to the Fair Housing Board a whole warehouse of tools with instructions, real or implied, to use them to take away private property rights and individual freedoms.

I want to comment, Mr. Chairman, on one additional provision of the administration bill which is now before this subcommittee. Section 408(e) of S. 3296 provides that "the Secretary of Housing and Urban Development shall administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this title."

Upon examination, this seemingly innocuous direction becomes a spreading giant that will encompass every activity of the Department of Housing and Urban Development. I believe there is no need to remind this subcommittee or the Congress what this means, because it is clear that in a very few years this Department will be larger than any other executive agency with the exception of the Defense Department. And this section would amend for now and evermore each and every program authorization affecting housing and urban development. That is the watchword now, Mr. Chairman, to consider down the line all these departments dealing with these matters. Let it not be said, Mr. Chairman, that this section is nothing more than a restatement of title VI of the Civil Rights Act of 1964. That statute merely prohibits Federal financial assistance to any activity in which there is discrimination based on race, color, or national origin; but section 408 (e) directs the Secretary of Housing and Urban Development to act "affirmatively" in eliminating such discrimination. In the present atmosphere of promoting "civil rights" this means nothing less than aggressively carrying the fight to every individual in the Nation. The watchword in the Department will be "making a showing", and the instructions to the Department from higher authority will be the same. This slogan applies now in the field of medicare and school "compliance."

Purely and simply it gives the Secretary "busing" authority, and there is absolutely no limit to the extreme efforts that would be exercised under this authority.

Mr. Chairman, no Board should be vested with the power granted to the Fair Housing Board under the bill approved by the House Judiciary Committee. No public official should be given the instruc

tions and power given to the Secretary of Housing and Urban Development.

I trust, Mr. Chairman, that the stress I placed on title IV will not obscure my strong objections to other portions, notably titles II, III, and V.

Title II, which deals with the selection of juries in State courts is both unnecessary and unsound and constitutes a clear usurpation by the Federal Government of the powers reserved to the States. Proper exercise by the Attorney General of the power he already has under 18 U.S.C. 243 would eliminate any real or imagined need for the extreme authority requested in this title and would prevent a further disturbance of the balance in Federal-State relations.

As to title III, which deals with public education and other public facilities, I object strenuously and particularly to the fact that it would give the Attorney General arbitrary, uncontrolled, and capricious power and discretion to bring suits, without any complaint whatsoever. This would eliminate the carefully thought out provision which the Congress put in the Civil Rights Act of 1964.

Title V would give the Federal Government new and totally unnecessary jurisdiction in the area of criminal law enforcement historically the exclusive jurisdiction of the States, if the violation is in any manner connected with civil rights activity. This would be another step in the gradual erosion of the right of each State to enact and enforce its own laws. In addition, it does not afford the individual the protection to which he is constitutionally entitled.

Title I deals with the selection of juries in Federal courts. The Congress, of course, has full jurisdiction over this matter and it may be that some reform is needed. I think, however, that it would be premature for the Congress to act on this important matter until the proposed changes have been fully studied and considered by the Judicial Conference of the United States, the American Bar Association, and the American Law Institute. This has not yet been done. I think I recently read where the judges of the District of Columbia had made a special communication to the chairman of this committee asking that the District of Columbia at least be taken out from under the provisions of this title. Now, that shows that it is immature and not thought out and more or less jumped at, a more or less jumped-at affair dealing with the institution of the English law.

Senator ERVIN. We have sent copies of this title to the chief judges of the Federal district courts throughout the country, and every one who has replied to the subcommittee has stated that title I is a backward step as far as reforming juries in the Federal courts is concerned. They are unanimously opposed to it.

Senator STENNIS. That proves the immaturity and the lack of need as well as the unsoundness of the proposal itself.

This bill, if enacted into law, will prove to be the vehicle that will destroy our concepts of government that are based on the common law system of England and the constitutional system that we have developed here in America. The basic concept of that system is that the individual, in certain fields, is not subordinate to the government: that he has certain rights which cannot be taken away by his government. Ordinary police and health laws excepted, of course, the right