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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1122

1122     IOWA LAW REVIEW     [Vol. 49

   Michigan could not apply her long-settled policy against racial and creedal discrimination to this segment of foreign commerce ....179

Absent any federal expression to the contrary, the states therefore seem to have concurrent power to bar discrimination by businesses engaged in interstate commerce or substantially affecting such commerce.
   Have the states been barred from prohibiting such discrimination in businesses affecting interstate commerce by any exercise of the federal government's plenary power over that commerce? Whether Congress has pre-empted a field is determined from the language of its legislation or from external evidence of its intent. Worthy of note is the fact that any intent to pre-empt the field is specifically denied in the current civil rights proposals now before Congress.180 Further, no national legislation or regulation presently exists which suggests in any way an intention to preclude the states from acting in this area.
   Where federal intentions in regard to the occupation of a field are not clear, the relevant question is usually deemed to be whether the particular state action involved conflicts with national policy and therefore should be barred.181 Relevant is whether the scheme of national regulation is so pervasive and comprehensive as to make reasonable the inference that Congress left no room for the states to supplement it. Also important is whether the national regulation touches upon a field in which the federal interest is so dominant that our system necessarily assumes that state laws on the same subject are impermissible. Lastly, of significance is whether the enforcement of the state act would present a serious danger of conflict with the administration of any federal program.
   It would seem that state antidiscrimination laws of the kind proposed here are in no way in conflict with national policy from any of the previously noted points of view. Indeed, the opposite is true. Such laws complement our present national policy and advance its objectives in a manner in no way inconsistent or in conflict with that policy. Nor do the kinds of laws proposed here in any way burden the administration of any federal policy.
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179 Id. at 40.
180 See Public Accommodations Hearing 6(b), at 4 (S. 1732): "This Act shall not preclude any individual or any State or local agency from pursuing any remedy that may be available under any Federal or State law, including any State statute or ordinance requiring nondiscrimination in public establishments or accomodations." See also Employment Hearings 702, at 70 (S. 1211); id. 13, at 92 (S. 1937).
181 Pennsylvania v. Nelson, 350 U.S. 497 (1956); California v. Zook, 336 U.S. 725, 729 (1949).

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1122 IOWA LAW REVIEW [Vol. 49 Michigan could not apply her long-settled policy against racial and creedal discrimination to this segment of foreign commerce ....179 Absent any federal expression to the contrary, the states therefore seem to have concurrent power to bar discrimination by businesses engaged in interstate commerce or substantially affecting such commerce. Have the states been barred from prohibiting such discrimination in businesses affecting interstate commerce by any exercise of the federal government's plenary power over that commerce? Whether Congress has pre-empted a field is determined from the language of its legislation or from external evidence of its intent. Worthy of note is the fact that any intent to pre-empt the field is specifically denied in the current civil rights proposals now before Congress.180 Further, no national legislation or regulation presently exists which suggests in any way an intention to preclude the states from acting in this area. Where federal intentions in regard to the occupation of a field are not clear, the relevant question is usually deemed to be whether the particular state action involved conflicts with national policy and therefore should be barred.181 Relevant is whether the scheme of national regulation is so pervasive and comprehensive as to make reasonable the inference that Congress left no room for the states to supplement it. Also important is whether the national regulation touches upon a field in which the federal interest is so dominant that our system necessarily assumes that state laws on the same subject are impermissible. Lastly, of significance is whether the enforcement of the state act would present a serious danger of conflict with the administration of any federal program. It would seem that state antidiscrimination laws of the kind proposed here are in no way in conflict with national policy from any of the previously noted points of view. Indeed, the opposite is true. Such laws complement our present national policy and advance its objectives in a manner in no way inconsistent or in conflict with that policy. Nor do the kinds of laws proposed here in any way burden the administration of any federal policy. ________________________ 179 Id. at 40. 180 See Public Accommodations Hearing 6(b), at 4 (S. 1732): "This Act shall not preclude any individual or any State or local agency from pursuing any remedy that may be available under any Federal or State law, including any State statute or ordinance requiring nondiscrimination in public establishments or accomodations." See also Employment Hearings 702, at 70 (S. 1211); id. 13, at 92 (S. 1937). 181 Pennsylvania v. Nelson, 350 U.S. 497 (1956); California v. Zook, 336 U.S. 725, 729 (1949).