ley law I think they could; yes, sir. If it were in direct conflict with it I do not think they could because I think the Congress has certainly the power under the decisions to regulate the field of labor-management relations and, having regulated it, I do not think a State could pass a law which was in direct conflict. But I certainly think there are many fields that are ancillary and corollary or go hand in hand with it that the Congress has not regulated.

As I understand the Garner case, they have held that simply because Congress has enacted an all-inclusive Labor-Management Relations Act that the States have no power to enact anything in connection with it if it affects interstate commerce.

Mr. FEIGHAN. The reason I ask that is that I am familiar with the legislation proposed in the State of Ohio on the "right to work." I do not think it was passed, but I wondered if any other States have on their statute books a so-called right-to-work act.

Mr. BERGMAN. You mean other than Texas? I think there are several States. For instance, Virginia has one, as I recall it. Mr. THOMAS B. GAY. There are either 17 or 18 States. Mr. FEIGHAN. This legislation, then, would not affect it? Mr. BERGMAN. This bill would not affect the right-to-work laws of the States? I do not think it would affect any particular law, but I do think it would have a drastic effect on a further piece of legislation which was passed in Texas, which made a labor union that violated that law, or an employer who violated that law, subject to the antitrust laws and civil and criminal penalties of the antitrust laws. I think this act would definitely affect that. I think it would make those valid where now, I believe, if they come to the Supreme Court, probably they will be held invalid under the Garner case. Mr. FEIGHAN. Thank you.

Mr. WALTER. Judge Smith, I think this would be a good place to recess, to reconvene at 2:30.

Mr. SMITH. At your pleasure, sir.

(Thereupon, at 11:50 a. m., Tuesday, July 12, 1955, a recess was taken until 2: 30 p. m. of the same day.)

AFTERNOON SESSION

Mr. WALTER. Judge Smith, we are ready to proceed.

Mr. SMITH of Virginia. Mr. Dorn.

Mr. DORN. Let Mr. Jonas proceed first.

Mr. WALTER. Very well, Mr. Jonas.

STATEMENT OF HON. CHARLES RAPER JONAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. JONAS. Mr. Chairman and members of the committee, I am Congressman Jonas from North Carolina's 10th District, and I came here this afternoon, hearing that this meeting was in progress, to indicate my approval and support of H. R. 3. I do not have any prepared statement but I do have a definite feeling that we need this bill, or one of its general nature, to eliminate a lot of confusion that I think exists in respect to differentiation of responsibilities of State governments and Federal governments in fields in which they have concurrent jurisdiction.

It has only been the last few years, 10 or 15, that the Supreme Court has been consistently holding that whenever Congress legislates in a particular field that thereby it has ousted the jurisdiction or the authority of State governments to legislate in that same field.

There has been quite a controversy through the years on the interpretation of the 10th amendment and its effect, and as late as 1935, I think it was, the Supreme Court of the United States, in the famous poultry case, used the 10th amendment and its provisions to nullify an act of Congress. Since that decision and in more recent years the Supreme Court, as I understand their decisions, has undertaken to lay down a rule which, in layman's language, says that whenever Congress legislates in a field, thereby it preempts the jurisdiction and authority in that field and denies the right of States to enact or enforce legislation in that particular field.

As I read this bill of Judge Smith's, I cannot see anything in it that undertakes to vest any new powers in the States. The fact of the matter is it does not deal with substantive law at all. It merely undertakes, as I view it, to clarify the intention of Congress that whenever Congress so intends to preempt a field it should state that intention in so many words. I do not think the language of this act would impinge on the authority of Congress or its constitutional right to legislate in any field in which it has power to do so, but it merely states that whenever Congress intends to deny the States concurrent jurisdiction or the right to enact legislation in a particular field it should so state. The courts would thereby be given an opportunity to know clearly and concisely what the intent of Congress was and would not have to speculate about it. It seems to me it would help the judicial process in that respect.

As I have stated, I do not have a prepared statement. I am in sympathy with and approve the general purpose of the bill; I think it would have a very sound effect, and I would like to see the subcommittee report the bill back to the full committee and then let it come to the House for decision.

Mr. WALTER. Any questions?

Thank you very much. I think we are all in agreement. The only thing is there are a few disturbing points that we will probably get around to discussing in executive session.

Mr. JONAS. May I say, Mr. Chairman, if you will permit me to do so, that the first few words of the first sentence disturb me a little bit because I am not so sure the words "no act" might not be a little too broad, but I certainly think the principle is sound. I am in favor of it, and I am quite sure the subcommittee can remodel the language in such a way as to be sure that the bill does not undertake to impinge on the rights of Congress to legislate in fields exclusively in the jurisdiction of the Federal Government. I am certain the author of the bill had no intention of putting any restriction on Congress to legislate in its own fields without any qualifications.

Thank you.

Mr. SMITH of Virginia. Mr. Dorn.

STATEMENT OF HON. W. J. BRYAN DORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA

Mr. DORN. Mr. Chairman, and ladies and gentlemen of the subcommittee, I will submit a short prepared statement for the record. (The statement referred to is as follows:)

STATEMENT BY HON. W. J. BRYAN DORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA, IN SUPPORT OF H. R. 3

The past 20 years have seen an almost complete reorientation in the political thinking of the average American citizen. Where, a generation ago, city hall and the State capitol were the focal points of political interest, now they stand in relative insignificance beside the Nation's Capitol.

Many factors have, of course, contributed to this decline in the prestige and importance of local government. But, perhaps the most important has been the expansion of Federal authority into areas which had traditionally been the sole responsibility of the States. Scarcely any economic activity, no matter how local in character, can now safely be said to be entirely free from Federal regulation and control. Though many may doubt the wisdom and necessity of this constant expansion of Federal powers, it will remain unaffected by the Smith bill, H. R. 3. The bill-as we understand it-in no way interferes with the exercise by the Congress of the powers conferred on it by the Constitution.

Instead, the Smith bill is directed to a secondary issue which has assumed importance only because of the expansion of Federal powers which the past few years have seen. I refer, of course, to the so-called doctrine of Federal preemption. That doctrine is, in substance, a rule of statutory construction formulated by the Supreme Court to oust the States of jurisdiction over matters which the Federal Government has taken in hand. Thus, through the operation of the Federal preemption rule, these 20 years of expansion of Federal powers have witnessed an almost equally marked contraction of State powers.

No one can dispute the fact that there are areas of our economic life which require uniform national treatment and which must, therefore, be left entirely to the Federal Government. Banking and currency matters furnish a good example of this type of subject matter. It is more difficult, on the other hand, to discern any overwhelming national policy which must preclude the States from requiring the registration of aliens (see Hines v. Davidowitz, 312 U. S. 52, holding unconstitutional the Pennsylvania Alien Registration Act of 1939 upon the ground that the Federal Act of 1940 had preempted the field) or condemning adulterated packing stock butter (see Cloverleaf Co. v. Patterson, 315 U. S. 148, holding unconstitutional the Alabama Renovated Butter Act for conflict with certain provisions of the Internal Revenue Code), or providing for compulsory arbitration to avoid public utility strikes (see Amalgamated Asso. v. Wisconsin Board, 340 U. S. 383, holding the Wisconsin Public Utility Strike Act unconstitutional for conflict with the National Labor Relations Act, as amended). Yet, in each of these instances, the States have been deprived of the power to act solely by virtue of judicial construction of the Federal law in question and despite the total absence of any expressed congressional intent to preclude State action.

Here, then, is the area in which the Smith bill would operate. The bill would prevent the courts from construing a Federal law to preempt a field to the exclusion of State laws on the same subject matter unless Congress expressly indicated its purpose to oust the States of jurisdiction over the subject matter in question. Mr. Justice Frankfurter has well stated the case in favor of H. R. 3. Dissenting in Bthlehem Steel Co. v. New York Board (330 U. S. 767, 780), Justice Frankfurter said:

"Since Congress can, if it chooses, entirely displace the States to the full extent of the far-reaching commerce clause, Congress needs no help from generous judicial implications to achieve the supersession of State authority * * any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assume full Federal authority completely displacing the States."

Thus, the Smith bill would in no way handicap the Congress in the discharge of the responsibilities entrusted to it by the Constitution. It would, however, insure that displacement of State authority would occur, where necessary, only

upon full consideration by Congress. And the States themselves could be assured that, to the greatest possible extent, they would retain the power to discharge the responsibilities entrusted to them by the people.

The enactment of the bill would be a long step toward the preservation of our Federal form of government.

Mr. DORN. I just want to add this, that I am not a lawyer, do not know anything about all these cases that have been mentioned here, and feel that is a matter for the committee to decide. But I can tell you from my experience in the State house of representatives, in the State senate, and in the Congress here, that something is going to have to be done, in my opinion, to help that pendulum to swing back in the other direction. A lot of people argue with me that the pendulum will swing back and forth. That may be true. It has been true in the past history of this country. But, as was pointed out before this meeting began, I have noticed among the younger people of this country a tendency to look to Washington for everything, and in my opinion that is a very dangerous trend in a country as large as the United States with 48 States.

In my experience in the Army and in my travels around the world, and being stationed abroad, I have found there is more difference between various sections of South Carolina than between South Carolina and other parts of the world. I can foresee, even in my own lifetime, a socialistic dictatorship in the United States if this trend continues of centralization in our Federal Government and educating the people to look to Washington for everything.

I still get around the country a lot and I find you have less and less emphasis every year on local and State government. I remember when I first ran for the legislature in South Carolina we had as candidates a former candidate for Governor, a former Senator, and a man with a masters of arts degree from the University of Georgia. There were 11 or 12 running in that race in 1938. Now, in the 17 years since then, you cannot get people to run for the legislature in Greenwood County, S. C. They do not think there is anything they can do in Columbia.

I think this bill will help place more emphasis on State and local government and that is my sole reason for being here. Of course I endorse H. R. 3. I think it is a step in the right direction. There are many other things that will have to be done to decentralize this. government, but I think it is a step in the right direction. I have the highest regard for this committee, and if any minor details have to be worked out I am sure this committee can do it.

I have heard complaints from members of the legislature in my State about this very thing dealt with in H. R. 3. They pass laws and then the Supreme Court supersedes what they think is their constitutional right. I think it is bad. And the same is true, you might say, of the Congress itself. I have never been so frustrated, and I have served in every legislative body open to me except the United States Senate, and I ran for that; but I cannot get a local bill considered here without approval of the Bureau of the Budget, Corps of Engineers, and so on, and then you are back where you started. The congressional powers are being usurped and it is a dangerous trend. I am sorry to have taken so much of your time.

Mr. WALTER. We are very glad to have you, Mr. Dorn. What do you think about this particular legislation?

Mr. DORN. I will be frank with you. I think it is good, generally speaking. I want to repeat I am not a lawyer, but I have every confidence in the lawyers on this subcommittee and am sure they can work out the practicability of it. I think the general idea as expressed by Judge Smith is good. That is my feeling on that.

Mr. WALTER. Thank you very much.

Do you have any more witnesses this afternoon, Judge Smith? Mr. SMITH of Virginia. Yes, Mr. Lawrence Gooding, chairman of the Wisconsin Labor Board.

Mr. WALTER. Very well, Mr. Gooding.

STATEMENT OF LAWRENCE GOODING, MEMBER, WISCONSIN EMPLOYMENT RELATIONS BOARD

Mr. GOODING. My name is Lawrence Gooding. I am an attorney in Wisconsin. I practiced from 1920 to 1939. Since 1939 I have been a member of the Wisconsin Employment Relations Board, which is the labor board in that State.

I am supporting H. R. 3 as a result of my experience of 16 years in attempting to administer a State labor relations act. I think Wisconsin has probably had as much experience as any individual State in litigation eventually reaching the United States Supreme Court. Mr. WALTER. Do you have any idea what the law is?

Mr. GOODING. I thought 16 years ago I did have an idea, but the longer it goes the less idea I have of what it is now, and I think Mr. Gay this morning pointed out pretty well the situation that has developed in the 11 cases he cited, 6 going one way and 5 another way, all decided by the Supreme Court.

Now, over the past several years, and after this question was raised-and it was raised immediately before us. I think one of the very first cases we had was the Allen Bradley case that went to the United States Supreme Court in which the action of the Wisconsin State board was eventually sustained. In that case and in all cases in which the question could be raised since, we are always faced with an attack on the power of the Wisconsin board to take any action at all. Sometimes that attack comes from the employer if he happens to be the respondent, and sometimes it comes from the union if it happens to be the respondent, but the question is raised in practically every case that comes before us.

Over the years we have several times urged Congress to amend, first the Wagner Act and then the Taft-Hartley Act, so that there would be no question about what Congress intended to do. We urged first an amendment that would guarantee, or that would indicate, that Congress intended that the State should have jurisdiction concurrent with the Federal Government. That was the original rule that was followed in Wisconsin and it was also followed in New York, and it was the rule laid down by the Supreme Court of Wisconsin and the Appellate Court of the State of New York. Under that rule the State, under its police power, was permitted to act in all cases alleging a violation of the State law until such time as the jurisdiction of the Federal Government was invoked and the National Labor Relations Board assumed jurisdiction in the same labor dispute.