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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1120

1120     IOWA LAW REVIEW     [Vol. 49

stand at the threshold of two of the basic areas in which equal opportunity must be assured. Unless employment agencies and real estate brokers conform to the letter and spirit of these laws, much of the effort expended in the direction of assuring equal opportunity in employment and housing will be useless. We have a right to expect that licensed businessmen occupying a peculiarly critical position in the process of obtaining housing and employment will maintain the highest degree of conformity to the mandate of these laws. Therefore, in addition to other measures, suspension or revocation of their licenses for breach of the antidiscrimination provisions seems most appropriate.171

VI. STATE EQUAL RIGHTS STATUTES AND INTERSTATE COMMERCE

   Some concern is often expressed as to whether antidiscrimination legislation is beyond the power of the states because it may impinge upon or burden interstate commerce. Much of the employment covered by the proposed statute will be closely connected in one way or another with interstate commerce; and many of the public accommodations regulated by the proposed act are integral way stations in the flow of interstate commerce. Does this prevent a state from proscribing discrimination in such employment or pubic accommodations?
   It is true that the commerce clause172 vests in Congress the power to regulate interstate and foreign commerce. However, this power does not necessarily operate to exclude all state authority in matters affecting such commerce. There are certain areas of interstate commerce which by their nature require consistent and uniform national regulation. In these areas the regulatory power of Congress is exclusive.173 No state or local law is permitted to regulate or interfere with these areas of commerce. On the other hand there are areas of commerce in which the federal and state power overlap and in which there is concurrent regulatory jurisdiction. In these areas uniform national regulation is not essential.174 State legislation is permitted unless Congress, in exercising its plenary power over interstate commerce, clearly indicates that it intended to pre-empt the field.175
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171 The revocation or suspension of the license of real state brokers or employment agencies for violation of the proposed act may be deemed analogous to the existing NLRB practice of rescinding the certification of a union found to have discriminated against Negroes by refusing to represent their interests fairly. Sovern, The National Labor Relations Act and Racial Discrimination, 62 COLUM. L. REV. 563, 595-96 (1962).
172 U.S. CONST. art. I, 8.
173 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 312 (1851).
174 Ibid.
175 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see Pennsylvania v. Nelson, 350 U.S. 497 (1956) (Smith Act supersedes state sedition act).

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1120 IOWA LAW REVIEW [Vol. 49 stand at the threshold of two of the basic areas in which equal opportunity must be assured. Unless employment agencies and real estate brokers conform to the letter and spirit of these laws, much of the effort expended in the direction of assuring equal opportunity in employment and housing will be useless. We have a right to expect that licensed businessmen occupying a peculiarly critical position in the process of obtaining housing and employment will maintain the highest degree of conformity to the mandate of these laws. Therefore, in addition to other measures, suspension or revocation of their licenses for breach of the antidiscrimination provisions seems most appropriate.171 VI. STATE EQUAL RIGHTS STATUTES AND INTERSTATE COMMERCE Some concern is often expressed as to whether antidiscrimination legislation is beyond the power of the states because it may impinge upon or burden interstate commerce. Much of the employment covered by the proposed statute will be closely connected in one way or another with interstate commerce; and many of the public accommodations regulated by the proposed act are integral way stations in the flow of interstate commerce. Does this prevent a state from proscribing discrimination in such employment or pubic accommodations? It is true that the commerce clause172 vests in Congress the power to regulate interstate and foreign commerce. However, this power does not necessarily operate to exclude all state authority in matters affecting such commerce. There are certain areas of interstate commerce which by their nature require consistent and uniform national regulation. In these areas the regulatory power of Congress is exclusive.173 No state or local law is permitted to regulate or interfere with these areas of commerce. On the other hand there are areas of commerce in which the federal and state power overlap and in which there is concurrent regulatory jurisdiction. In these areas uniform national regulation is not essential.174 State legislation is permitted unless Congress, in exercising its plenary power over interstate commerce, clearly indicates that it intended to pre-empt the field.175 ________________________ 171 The revocation or suspension of the license of real state brokers or employment agencies for violation of the proposed act may be deemed analogous to the existing NLRB practice of rescinding the certification of a union found to have discriminated against Negroes by refusing to represent their interests fairly. Sovern, The National Labor Relations Act and Racial Discrimination, 62 COLUM. L. REV. 563, 595-96 (1962). 172 U.S. CONST. art. I, 8. 173 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 312 (1851). 174 Ibid. 175 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see Pennsylvania v. Nelson, 350 U.S. 497 (1956) (Smith Act supersedes state sedition act).