I. LEGISLATIVE HISTORY
By the filing of this complaint, the Attorney General seeks to obtain broad equitable relief, the effect of which would be to alter the structure and the administration of a major municipal police force. I am told that this sweeping relief is necessary because the present policies and procedures of that police force violate the Constitution and the civil rights laws of the United States. The present issue is whether the Attorney General has the power to maintain such a lawsuit. Surely, the discussion must begin with the history of the attempts in Congress to grant powers of this type to the Attorney General by express statutory enactment. Of overwhelming significance to this case is the fact that on three separate occasions, these attempts have failed.
In an Executive Communication dated April 9, 1956, then Attorney General Herbert Brownell addressed what he viewed as a deficiency in the available means for enforcing 42 U.S.C. § 1985. That section, of course, attempts to provide relief from conspiracies to interfere with constitutional rights. Mr. Brownell pointed out that under the terms of the statute, such conspiracies "can be redressed only by a civil suit by the individual injured thereby." He urged the Congress, therefore, to consider "a proposal authorizing the Attorney General to initiate civil action where necessary to protect the rights secured by that statute." H.R.Rep. No. 291, 85th Cong., 1st Sess., Reprinted in (1957) U.S.Code Cong. & Admin.News, pp. 1966, 1978, 1980.
Attorney General Brownell's suggestion was incorporated in the proposed Title III of the Civil Rights Act of 1957, which began in Congress as bill No. H.R. 6127. A majority of the House Judiciary Committee recommended approval of this legislation, including Title III. As proposed, the bill "amends existing law so as to permit the Federal Government to seek from the civil courts preventive or other necessary relief in civil-rights cases." H.R.Rep No. 291, supra, at 1966. It "provides that the Attorney General may institute for the United States or in the name of the United States a civil action for preventive relief whenever a person has committed any acts or practices which would give rise to a cause of action under the existing law as contained in section 1985." Id. at 1974. Moreover, the committee majority noted that the proposed amendment "authorizes the Attorney General to institute an action whenever any persons are about to engage in those acts and practices" which would violate the statute, thus clearly demonstrating that Title III contemplated suits for injunctive relief. Id. at 1975.
Finally, the report was careful to point out that, as proposed, Title III would not create any new rights. Rather, the bill created "a New remedy" (emphasis added), because its effect was "to provide the Attorney General with the right to bring a civil action . . . to prevent acts or practices" which would violate section 1985. Id. It is evident, therefore, that in the minds of Title III's authors, this remedy did not previously exist.
Not all the members of the House Judiciary Committee joined in hailing the proposed amendments. The minority report on H.R. 6127 described Title III's provisions as "truly shocking." At the heart of the objections was the "blanket authority to institute civil actions" which the new law would confer upon the Attorney General, thereby endowing him "with the privilege of setting up law through injunction." H.R.Rep. No. 291, supra, at 2001.
What concerned the minority most was the extent of intrusion that Title III would permit upon the authority of state and local officials. Of particular relevance for our purposes is the fact that the minority report anticipated the very lawsuit that the Attorney General now has brought. "Consider the effect of this legislation on State and local law enforcement; police officers will be faced with the threat of a Federal injunction." Id., at 2001. The report went on to point out the plight into which local officials will be thrust when they are faced with "an all-powerful Federal Government which proceeds against them by way of injunction." Further objection was raised on the ground that "of course these proceedings can and doubtless will be brought at the most inconvenient times, so far as conducting the affairs of those particular officials are (sic) concerned." Id.
Finally, the minority concluded their condemnation of Title III with a fearful prediction: "Armed with the powers that this bill would expressly confer, a politically minded Attorney General, in combination with an unreasonable Federal district judge, could terrorize the people in any community. No Attorney General should ever seek such powers and Congress ought never to grant them." Id. at 2015.
The concerns raised by the committee minority in the House were echoed loudly when the bill reached the floor of the Senate. Many senators decried the federal intrusion upon local authority that Title III would permit. Thus, Senator Kefauver expressed his opposition by stating that "(t)he Federal Government cannot take it upon itself to referee the police forces and the sheriff's officers of every county and locality in the nation." 103 Cong.Rec. 12530 (1957). Rather, the Senator felt that federal supervision need not extend beyond assurance of the right to vote. "A sheriff who practices brutality for racial reasons will not long remain in office." Id. Similarly, Senator Saltonstall condemned "the use of compelling force by the Federal Government" in what he termed "direct interference with home rule, local administration and state administration." Id. at 12541. In the same vein, Senator Hickenlooper proclaimed his opposition to Title III because it represented "a long step toward the further concentration of autocratic and bureaucratic authority in the central Government at Washington." Id. at 12549.
After much debate, the opposition prevailed, Title III was deleted, id. at 12565, and the bill was approved by the Senate, minus the controversial amendment to 42 U.S.C. § 1985. Id. at 13900. Thereafter, the House agreed, and similarly approved H.R. 6127 without the provisions of Title III. Id. at 16112-13. With President Eisenhower's signature, the bill became the Civil Rights Act of 1957, Pub.L. No. 85-315, 71 Stat. 634 (1957). The much disputed Title III had failed to become law.
An attempt to resurrect Title III was made in 1960. The resulting storm of protest on the floor of the Senate is best illustrated by the remarks of Senator Ervin. He said that this law would "destroy the states of the union" because it would give the Attorney General "the arbitrary power to supervise the actions of states, the actions of cities, the actions of towns, the actions of counties." The Senator went on to state that while he opposed such power in the hands of any official, he found it particularly offensive in the Attorney General, "for not only is he a government officer, but he is also, in every case of which I've ever heard, a politician." Under Title III, "the Attorney General could virtually convert Federal district courts into administrative branches of the executive department of the Federal Government."
Finally, the Senator capped his protests with some disconcerting predictions:
If the occupant of this office should happen to be a pragmatic politician, or a so-called civil rights zealot, or a person susceptible to coercion by pressure groups, he could employ part III as an intimidating club, and thereby control or demoralize State and local governments. . . .
The State or local official could do one of three things. He could submit to the threat, and thus permit a Federal officer to dictate how the functions of a State or local office are to be discharged. He could relinquish his State or local office, and thus escape further harassment and hazard. And, finally, he could stand up and fight for his convictions, even to the point of defending a lawsuit in a Federal district court.