Reading Room Document

Constitutionality of Legislation Limiting the Remedial Powers of the Inferior Federal Courts in School Desegregation Litigation

Proposed legislative restriction on the power of the inferior federal courts to order busing remedies in school desegregation litigation cannot be justified as an exercise of congressional power to enforce the Fourteenth Amendment, if such a restriction would prevent a court from fully remedying a constitutional violation. Proposed legislation can be justified as an exercise of congressional power under Article III, § 1 of the Constitution, which gives Congress very broad power to control the jurisdiction of the inferior federal courts. The bill does not usurp the judicial function by depriving the lower courts of power to hear desegregation cases and to impose remedies which do not involve busing, nor does it instruct the lower courts how to decide issues of fact in pending cases, or require reversal of any outstanding court order. The bill's provision prohibiting the Department of Justice from using appropriated funds to bring or maintain an action to require busing is constitutional despite the limitations that it would impose on the Executive's discretion, since it does not preclude the Department from fulfilling its statutory obligation to enforce the law through seeking other effective remedies or objecting to inadequate desegregation plans. Both the limitation on courts and on the Department of Justice should be upheld if challenged under the equal protection component of the Fifth Amendment's Due Process Clause, since neither limitation creates a racial classification nor evidences a discriminatory purpose. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/22871/download.

May 6, 1982