State Anti-Discrimination Act Not a Burden on Interstate Commerce
Total Page：16
File Type：pdf, Size：1020Kb
The Catholic Lawyer Volume 9 Number 3 Volume 9, Summer 1963, Number 3 Article 11 Recent Decision: State Anti-Discrimination Act Not a Burden on Interstate Commerce Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Constitutional Law Commons, Race and Ethnicity Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons This Notes and Comments is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 9 CATHOLIC LAWYER, SUMMER 1963 Constitution are warrants for the here and 37 Watson v. City of Memphis, supra note 29, at now." T 4500. Recent Decision: cease the discrimination and to give Green State Anti-Discrimination another opportunity to enroll. The Supreme Act Not A Burden On Court of Colorado, contrary to the Com- Interstate Commerce mission's order, declared that this statute, The principal legal arguments levelled through which the Commission received against segregation, and those which have its power, placed an undue burden on received the most notoriety, concern viola- interstate commerce and occupied an area tions of the due process and equal pro- pre-empted by federal legislation. The tection clauses of the fourteenth amend- United States Supreme Court, in reversing, ment.' But it is another section of the unanimously held that the Colorado statute Constitution, the commerce clause,-' which to prevent discrimination in hiring on is becoming increasingly important among account of race does not impose a con- the constitutional questions to be answered stitutionally prohibited burden upon inter- in the present civil rights conflict.:, state commerce. Colorado Anti-Discrimina- Ironically, the commerce clause has been tion Comm'n v. Continental Air Lines, Inc., utilized as an argument to justify discrim- 372 U.S. 714 (1963). ination. An example is the principal case An early interpretation of the commerce wherein Marlon Green, a Negro, applied clause attempted to repose all authority for the position of pilot with an interstate affecting interstate commerce in Congress air carrier. Although he was ostensibly thereby impliedly prohibiting any state 5 qualified to fill the position, his applica- regulation. Within thirty years this inter- tion for the carrier's training school was pretation was succeeded by a theory of rejected. Green informed Colorado's Anti- concurrent powers which allowed, and pre- Discrimination Commission of this action sently allows, a state to regulate an area and the Commission found that Green was of interstate commerce that does not re- rejected because of his race which amounted quire uniform rules." The states, however, to a violation of the state's Anti-Discrimina- because of race, creed, color, national origin or tion Act.4 The air carrier was ordered to ancestry." For a collection and analysis of similar Fair Em- 1 See, e.g., Burton v. Wilmington Parking Au- ployment Practice Acts see 36 NOTRE DAME LAW. thority, 365 U.S. 715 (1961); Brown v. Board of 189 (1961). Educ., 347 U.S. 483 (1954). - Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 2 U.S. CONST. art. 1, §8, cl.3. "[T]hat a state may regulate commerce ... can- 3 See N.Y. Times, June 20, 1963, p. 1, col. 8. not be admitted." Id. at 199; Dowling, Interstate -1COLO. REV. STAT. ANN. §80-24-6 (Supp. 1960) Commerce And State Power, 27 VA. L. REV. 1 declares that "It shall be discriminatory or unfair (1940). employment practice: (2) For an employer to 11Cooley v. Board of Wardens, 53 U.S. (12 How.) refuse to hire .. any person otherwise qualified, 298 (1851). NOTES AND COMMENTS were not given unbridled power to regulate health, safety and welfare of the com- this non-uniform area. For instance, a state munity; and in many instances, these laws could not regulate an area which was exclu- have been upheld.'-' sively subject to federal legislation. 7 Fur- State laws either requiring or prohibiting thermore, state regulation could not be segregation have also been tested against economically discriminatory"; nor could it commerce clause objections." In Hall v. impose an undue burden on commerceY DeCuir," a Louisiana statute requiring in- The question of whether a state regula- tegration on riverboats was held to violate tion creates an undue burden on commerce the commerce clause. The Court reasoned must be determined on an ad hoc basis. that the riverboats could not efficiently A court, in making such a determination, operate if each state bordering the Missis- will weigh the regulation's promotion of sippi enacted different legislation pertaining local interests against the extent to which to accommodations. Inconvenience would it restricts the free flow of interstate com- occur, the Court stated, through the reloca- merce or, stated differently, the extent to tion of passengers. This inconvenience was which it interferes in an area where na- held to be a direct burden on interstate com- tional uniformity is necessary. For example, merce in an area which needed uniformity in Southern Pac. Co. v. Arizona ex rel. of regulation. Approximately seventy years Sullivan,'0 the State of Arizona, intending later, in Morgan v. Virginia,15 the Court to increase railroad safety, enacted laws utilized the Hall rationale in invalidating a which limited the length of railroad trains state statute requiring segregation on in- passing within its jurisdiction. The Supreme terstate buses while passing through Vir- Court weighed the effect of the statute ginia. on transportation efficiency and economy A state statute that conflicts with federal against the safety value of the regulation. It concluded that the regulation exceeded 'E.g., Huron Portland Cement Co. v. City of what was essential for safety "since it does Detroit, 362 U.S. 440 (1960) (control of dense black smoke from docked ships); H.P. Welch not appear that it will lessen . the Co. v. New Hampshire, 306 U.S. 79 (1939) danger of accident."'- This process of (regulation on the number of consecutive driving weighing the effect of local interests against hours). interstate commerce has also been em- 13 The regulation need not be the product of a state legislature to be constitutionally objection- ployed with respect to laws that protect the able. Railroad and bus regulations have also been held to violate the commerce clause. Chance v. Lambeth, 186 F.2d 879 (4th Cir. 1951); White- 7See Union Brokerage Co. v. Jensen, 322 U.S. side v. Southern Bus Lines, Inc., 177 F.2d 949 202 (1944); South Carolina State Highway Dep't (6th Cir. 1949). v. Barnwell Bros., 303 U.S. 177 (1938). 1495 U.S. (5 Otto) 485 (1877). 8 Dean Milk Co. v. City of Madison, 340 U.S. 1, 328 U.S. 373 (1946). As to why the Morgan 349 (1951) (a state statute cannot discriminate case was not decided under the Interstate Com- against interstate commerce if reasonable nondis- merce Act see Pollak, The Supreme Court and criminatory alternatives adequate to conserve the States: Reflections on Boynton v. Virginia, legitimate local interests are available). 49 CALIF. L. REV. 15, 38-39 (1961). Bob-Lo 9 Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 Excursion Co. v. Michigan, 333 U.S. 28 (1948) (1959). is the third of three cases decided by the Supreme 10325 U.S. 761, 770-71 (1945). Court concerning commerce clause objections to 11Id. at 781-82. anti-discrimination statutes. 9 CATHOLIC LAWYER, SUMMER 1963 - legislation" or intrudes in a field Congress frain from discriminatory hiring practices .22 intended to occupy exclusively is invalid. 7 Many states, in contrast, have enacted If Congress does not clearly manifest an legislation prohibiting discrimination in this intent to exclude all state legislation,16 or area.21 These acts apply to all firms within if the statute is not in conflict with federal the states' jurisdiction, including those that law,1' the Court will be reluctant to strike are active in interstate commerce. No chal- down the state law."' State statutes that lenge on commerce clause grounds had are identical to federal legislation and which been brought before the Supreme Court 2 4 cover subjects omitted by federal legislation prior to the principal case. have been upheld so long as no conflict The Court, in the case under discussion, appears possible2 1 and pre-emption was not unanimously held that the Colorado statute intended. did not unduly burden interstate commerce Federal legislation is non-existent within and that federal legislation had not pre- the area of discrimination and employment empted the field of fair employment prac- practices. Executive orders, however, have tices in air transportation. In discussing the required government contractors to re- first point, the Court remarked that the facts of each case determine whether a state regulation is unduly burdensome. With 1' U.S. CONST. art. VI. cl. 2 (supremacy clause); this in mind, the Court felt that the circum- Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942). "But where the United States exercises stances before it did not amount to those its power of legislation as to conflict with the present both in Hall and Morgan. Further- state . the state legislation becomes inopera- more, the Court regarded the fair employ- tive . " Id. at 155-56. ment statute as localized matter and, more 17 See, e.g., Guss v. Utah Labor Relations Bd., 353 U.S. 1, 10 (1957); Amalgamated Ass'n of significantly, stated that the "threat of Street, Elec. Ry. & Motor Coach Employees v.