ESTABLISHING RULES OF INTERPRETATION GOVERNING QUESTIONS OF THE EFFECT OF ACTS OF CONGRESS ON STATE LAWS TUESDAY, JULY 12, 1955 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 1 OF THE The subcommittee met at 10 a. m., in room 327, House Office Building, Washington, D. C., Hon. Francis E. Walter (chairman) presiding, for further consideration of H. R. 3. Mr. WALTER. The committee will come to order. We are privileged to have our former distinguished colleague and associate on this subcommittee with us this morning, Mr. J. Frank Wilson. STATEMENT OF HON. J. FRANK WILSON, DALLAS, TEX. Mr. WILSON. Thank you, Mr. Chairman. It is a distinct pleasure, of course, to return to appear before my former colleagues and before the very subcommittee on which I served. When I retired from Congress, I resolved to continue to be of all possible public service. I am now in the private practice of law in my home city of Dallas, Tex. I appear before you as a former Congressman and as a plain American citizen deeply concerned with the strength and security of our country and with the efficient operation of its Government. In this role, I want to sincerely and wholeheartedly endorse and support H. R. 3 now pending before you. For a great many years a large part of the time of this great committee has been consumed in efforts to resolve conflicting interpretations of laws passed by the ConWe badly need the procedural clarification provided in H. R. 3. There is much validity in the charge that State sovereignty and State rights are being destroyed primarily by judicial and administrative interpretation of acts of Congress. Of course, some of the responsibility lies with Congress and with ambiguities in legislative enactments. This erosion or attrition, or whatever one wishes to call it, should not be allowed to continue. State laws should be nullified and State sovereignty limited only by legislation specifically designed for that purpose. The doctrine of preemption, where applied by implication, is immoral and does violence to our entire concept of constitutional government. 51 I am a believer in States rights, not on any sentimental basis, but on a basis of governmental and administrative efficiency. The dignity, sovereignty, and responsibility of the States has added strength and stability to the Union, and is essential to the efficient workings of our Federal system. All of us are aware of the growing complexities, powers, and importance of both State and Federal Governments. At the risk of oversimplification, we might say that conflict and confusion has arisen in 3 general areas for 3 general reasons, to wit: 1. The interpretation of laws by administrative and executive agencies of both State and Federal Governments. 2. The interpretation of laws by both State and Federal courts. 3. Voluminous legislation by both State and Federal Legislatures. I believe all of us will agree that all officials in all branches of our Government should be able to know with reasonable certainty what the law is. And, furthermore, I believe we will agree that State laws and State jurisdiction should be limited only by the specific intent of Congress clearly expressed and the laws passed by the Congress. To that end, it seems to me that the plain and simple stipulations in H. R. 3 are sound and are necessary for orderly governmental efficiency. We need to preserve as clearly as possible the lines of demarcation between the three branches of our Federal Government and also between State and Federal Governments. To this end, it seems to me that H. R. 3 is highly desirable. Congress is given the power and the authority, except in the few instances stated in the Constitution, to fix the authority and the responsibility of, and the procedure and rules for, the executive and judicial branches of the Government. In line with this authority and responsibility, in order to preserve our system of government, the time has come when the Congress must enact legislation substantially in line with the provisions of H. R. 3. It is my earnest hope that this great committee will shortly report H. R. 3 and that the Congress will act favorably thereon. Thank you, gentlemen. Mr. FEIGHAN. I wish to state it is a pleasure, as always, to have our very dear and distinguished former colleague with us. Mr. WILSON. Thank you. It is mutual. Mr. FEIGHAN. I was very interested in what you had to say. It seems to me there is a lot of merit in this particular bill. It does seem, however, there is one phase in this bill that I think it is very difficult to get at. In other words, how are we going to limit this power? I am for it in principle and I want to support it, but I am a little hesitant in that I feel it will be very difficult of application. Mr. WILSON. I think the Federal Constitution gives the Federal Government jurisdiction in certain fields very clearly, and in those fields I think the Federal courts and the Federal judiciary have absolute power to determine and apply the laws passed by Congress. The Constitution sets up the legislative bodies, both the Senate and the House, and certainly the Congress has the right under the Constitution to specifically provide that no act of Congress shall apply, or supersede, or evade, or avoid, or cancel, or rescind a State law unless it specifically says so in the body of the law. I do not think there is anything complicated about it. Mr. FEIGHAN. The only complication that would arise would be that after this legislation was passed, which is so general, then the court would have to interpret every bit of legislation to determine whether or not it came within the general broad terms of this bill. Mr. WILSON. I think so, and I think the first question they would have to look to is the field where the legislation applies, Is it strictly and surely provided for by the Constitution? The second question would be, Does Congress authorize by clear and specific language the application of that law in that field exclusively? There are many fields where there is concurrent jurisdiction, both State and Federal courts, both State and Federal authority, and properly so; but certainly just because Congress enacts a bill in one field it should not rescind or cancel all State laws in that field. I think it would just mean the eradication of State laws, the eradication of State authority, and further concentration of great power in the Federal Government, which we all know would be bad in the end. Mr. FEIGHAN. I agree with your general premise. I just wanted to make certain that if and when we do pass this proposed legislation we do it with a degree of certainty and specificness. In other words, the same trouble that is now being caused by the Supreme Court decision whereunder the State of Pennsylvania could not prosecute the subversives that are trying to overthrow our Government should be avoided. Mr. WILSON. I agree with you it should be very specific and of course the final determination will be up to the same Court that is now invading the State's province, but I think if Congress says that the Supreme Court must find in any congressional act specific words striking down State laws, I think that is about as definite as you can make it. Mr. FEIGHAN. At least for the moment I cannot think of any verbiage that would make it more specific. Mr. WILSON. It is kind of like laws passed back some time ago about which many people complained that were written generally and much authority was delegated to administrative and executive agencies to be the judge, jury, and executioners, and we as lawyers do not believe in that sort of thing. We think the judge should not be the prosecutor and the jury all in one. Mr. WALTER. Any questions, Miss Thompson? Miss THOMPSON. No. It is nice to see our former colleague here. Mr. WALTER. Mr. Hyde? Mr. HYDE. It is a pleasure to see you back. I might say I think we on the Republican side have missed you as much as those on the Democratic side. Mr. WILSON. I appreciate that. Mr. HYDE. I want to get your point of view on one thing. You made the statement, in response to some questions of Mr. Feighan, that you felt the Constitution had given Congress exclusive authority to act in certain fields and that in those fields acts of Congress should prevail. Mr. WILSON. That is right. Mr. HYDE. Where Congress has not been given the authority to act, the act is invalid anyhow, is it not? Mr. WILSON. Under the old concept of the Constitution, yes. Under the new concept I doubt that. Mr. HYDE. I suppose this bill is directed to those areas where it is vague. I am just wondering, in view of the, shall we say, modern interpretation of the Constitution, I have the feeling you cannot get at what you are driving at with this legislation, because if your premise is correct and I believe it is that where the Federal Government has been given authority to act their authority in that field is exclusive, it is very, very probable that the Supreme Court is going to rule that if they can find room for Federal authority under the commerce clause or the general-welfare clause the Court will continue the rule it has by saying it does not apply because the Federal Government has been given the exclusive authority to act. It looks like the only way we will get around it is by clarifying the commerce clause and the general-welfare clause. Of course, you do have those gray areas such as, I suppose, the case in Pennsylvania. It is not clear under the Constitution that the Federal Government has the exclusive right to enact legislation on treason and subversiveness. It may be in those gray areas this legislation would be helpful, but only in those gray areas. Mr. WILSON. That is what it is designed for. Where there is absolute and specific authority in the Federal Government this would not change the law. The States reserved all powers not granted in the Constitution. But we have come a long way from the old Jeffersonian doctrine, of which I am a proponent and advocate; and I do not say everything that has been done was bad; some was awfully good; but this does not tie the Supreme Court's hands and does not change anything except to what the Constitution says, and that is that Congress should write the legislation and not the courts. By innuendo and otherwise courts have been taking a sideline in their opinions and knocking down State laws just because they are close to the fence, when it is not absolutely necessary. My thought is, and I think the thought of the authors of this bill and others who are interested in it-and do not believe there are not plenty of people interested in it-that since Congress is delegated the total and complete power to pass legislation, they should pass this legislation directing the Supreme Court that they cannot knock down State laws or eradicate State laws without a direct provision in the law allowing them to do so. I do not think we can anticipate that the Supreme Coutr will pay no attention to this law. The thing is to put it on the books. If they evade it, it is their responsibility. Mr. HYDE. Suppose the Court says the States have no authority under the Constitution when Congress acts? Mr. WILSON. You mean in the whole field? That is what they are holding now, that if Congress acts in any field, whether they cover that area or not, the right of the State legislature to act in that field is preempted by the Federal Government. Mr. HYDE. In other words, they say if Congress chooses to act in a certain field it is exclusive in that field? Mr. WILSON. That is the tendency, and that is what they have held, but I do not think the Constitution meant that. I do not think the States, when they reserved the power, intended any such thing to come to pass. I think this law would clarify the situation and I think we must presume the Supreme Court would follow the law. I do not think we can presume otherwise. Mr. WALTER. The thing that disturbs me more than anything is the effect this legislation would have on statutes already on the books. As far as the future is concerned, I do not see too much difficulty, but how about the statutes that have already been enacted? How do we determine that direct and positive conflict? Mr. WILSON. I think that will be the main battle on this bill, but I think if you take that out of the bill you might as well quit the fight. I think that is one of the most important, if not the most important, thing in the bill. As you say, it can be done without legislation in the future if the Congress says, "This does not preempt the field except where specifically stated in the legislation." Mr. WALTER. I am concerned with the same thing Mr. Hyde is. Suppose the legislature of a State enacts legislation that it is the prerogative of the Congress under the Constitution to enact. What happens? Mr. WILSON. I think the power of the Federal Government is exclusive. I think they can strike down State laws where the Constitution has given Congress complete and unquestioned authority. I think the States are wasting their time if they enact legislation in those fields. But they hold now, in effect, that wherever Congress acts anywhere in a field, that stops all State legislation. Certainly that is not the concept of the Founding Fathers. There were very serious questions raised, as you know, at the time about this thing. Mr. WALTER. Any further questions? Thank you very much. Mr. WILSON. It certainly has been a pleasure, Mr. Chairman and members, to see you again. Mr. SMITH of Virginia. Mr. Chairman, we have, as I told you, several gentlemen here from long distances with reservations to leave, and I was trying to introduce them to you in the order in which they have to go. Mr. John L. Davidson, Jr., assistant attorney general of the State of Illinois, has a reservation for 12:30, and I think it would be well to hear him next. Mr. WALTER. Mr. Davidson, we will be very glad to hear from you at this time. STATEMENT OF HON. JOHN L. DAVIDSON, JR., ASSISTANT ATTORNEY GENERAL, STATE OF ILLINOIS Mr. DAVIDSON. Mr. Chairman and members of the committee, my name is John L. Davidson, Jr. I am first assistant attorney general of Illinois. I would like to speak very briefly in support of this proposed legislation. Others will discuss, I am certain, at greath length the relationship between this bill and the 10th amendment and the underlying historic concepts behind it. I would like to point out-I think Mr. Feighan has touched upon it-I think one of the most beneficial things this can possibly do is to light what Mr. Hyde has referred to as the gray areas. The growth of the doctrine of supersession by implication has resulted in an expanded field by which those affected do not know whether they should turn to the States or turn to the Federal Government. I refer particularly to the case of Terminal Railroad Association of |