Had the Treasury simply acquiesced on an ad hoc basis in the positi taxpayers involved in the pending cases, the shift might well have pro cient to oust the Court of jurisdiction, given Supreme Court decisions holu "voluntary cessation of allegedly illegal conduct does not . . . make [a] case United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953), at least where there "clear proof" that the "continuing practice" of which the conduct was an instanc "[has] been abandoned." Id. at 632 n.5. Knowing that "courts beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when . . . timed to" coincide with litigation, id. at 632-33 n.5, the Government told the Supreme Court that the Treasury had actually begun "the process necessary to revoke forthwith" all of the rulings underlying denial of tax-exempt status for all similar schools. There was, the Court was told, a wholesale shift in legal position by the Administration-as a result of which no live dispute remained regarding the tax-exempt status of racially discriminatory private schools. It is noteworthy that the Government said nothing on January 8 to inform the Supreme Court that, just two days earlier, Justice Department officials had sat silently by as the district court granted a motion they had strongly supported to stay proceedings in that court pending the Supreme Court's awaited clarification in Bob Jones and Goldsboro.9 Nor was the Supreme Court informed by the Government that the Treasury Department's restoration of beneficial tax treatment to racially discriminatory schools would require direct defiance of still binding judgments that had been entered in the recently reopened Green case-and that the actions by the Treasury Department which would supposedly suffice to moot the case (and thus to prevent the Supreme Court from providing the very clarification that the Government only recently had claimed it was eagerly awaiting) might thus entail contempt of the United States District Court for the District of Columbia. See Walker v. Birmingham, 388 U.S. 307 (1967) (contempt conviction not dependent on ultimate validity of judicial order disobeyed). On January 13, 1982, plaintiffs in the reopened Green litigation asked the district court for a further injunction to protect the relief they had previously won-by preventing Treasury officials from taking the very steps the Justice Department had told the Supreme Court they would take in order to moot the Bob Jones and Goldsboro cases pending in that Court. So far as I have been able to ascertain, although the plaintiffs in Green have called the Supreme Court's attention to the pendency of their request for such nationwide injuction relief, the Government itself has done nothing at all to assure that the Supreme Court is in fact informed of the very considerable cloud thereby cast over Treasury's capacity to perform the promise on which its January 8 claim of mootness rested. III. The Apparent Emergence of an Attempted Coverup by the Executive Branch in the U.S. Supreme Court The Government's quite stunning lack of candor in dealing with the Supreme Court in these cases does not stop, however, with this failure to inform the Court of the developments in the district court (see Section II-D supra) that have generated substantial doubt as to the Government's actual ability to execute its stated intention of promptly restoring tax-exempt status to the hundred or more schools that, like Bob Jones University and Goldsboro Christian Schools, discriminate on grounds of race. Worse still, even the Government's own intentions are now being misrepresented in the Supreme Court. For the remarkable truth is that, after the public outcry that greeted its proposed change in policy, the Government announced not only (1) that it would seek new congressional legislation to restore the old tax policy, but also (2) that the Secretary of the Treasury had "instructed the Commissioner of Internal Revenue not to act on any applications for tax exemption filed in response to the Internal Revenue Service's policy announced on Friday, January 8, 1982, until Congress has acted on the proposed legislation (except as required by the memorandum in support of the motion to vacate as filed in the Supreme Court on January 8, 1982)." This Treasury Department announcement of January 18, 1982, was echoed in a letter of the same date sent by President Reagan to the President of the Senate and the Speaker of the House of Representatives. Lest its extraordinary signifiance for the pending Bob Jones and Goldsboro cases be missed, it should be noted that the President's letter, and the Treasury Department position it reported, add up to a Cf. Giles v. Maryland, 386 U.S. 66, 99 (1967) (addendum to concurring opinion) ("deliberate concealment and nondisclosure by the State are not to be distinguished in principle from misrepresentation.") complete about-face with respect to the Executive's intended conduct, pending congressional action on the proposed legislation, vis-a-vis all racially discriminatory schools other than Bob Jones and Goldsboro. Specifically, it now appears that, directly contrary to the Justice Department's only official statement on the subject to the Supreme Court, the Government has told Congress that it has no intention whatever, while it awaits possible congressional action, of implementing any new policy to grant exempt status to racially discriminatory schools or, presumably, to allow tax deductions for contributions to such schools. The Treasury will offer such status, and the dollar benefits that go with it, only to the two specific schools whose cases reached the Supreme Court when it granted certiorari on October 13, 1981. And the Treasury will do so, notwithstanding the absence of any rational basis for distinguishing those two schools from all others, only to "support . . . the motion to vacate as filed in the Supreme Court on January 8, 1982," so that the Court might be persuaded not to provide the legal guidance that the Government itself had sought. It appears that the Supreme Court has received no communication from the Justice Department, or from anyone else, to correct the now false statements contained in the Department's January 8 submission urging the Court to vacate the Fourth Circuit's rulings on grounds of mootness. So far as the Court was officially informed when it proceeded to consider those rulings at its most recent Conference (that of January 22, 1982), and so far as the Court is officially informed today, the Government still intends to implement "forthwith" a policy of granting tax exemption for all otherwise eligible schools regardless of race discrimination. Even if the Supreme Court were charged with a roving commission to parse Treasury Department press releases and White House communications to the House and Senate, which it most assuredly is not, the Government's shift away from its January 8 position, while legally crucial, has hardly been so obvious as to attract general attention.1o It is hard to avoid the conclusion that the Department of Justice, under the Administration's direction, is fully prepared to have the Supreme Court act in this matter under the false impression that the Government is moving with all deliberate speed to restore tax-exempt status to racially discriminatory private schools while awaiting new legislation on the subject. The only conceivable reason to encourage this false impression in the Supreme Court is to increase the likelihood that the Court will regard the pending controversy as moot, and will accordingly vacate the Fourth Circuit's rulings against tax benefits for racially discriminatory schools and colleges. And the only imaginable reason to wish for such action by the Court is, in turn, to reduce the risk that the Supreme Court, like every other appellate court that has analyzed the issue, would rule-if given the chance-that the Internal Revenue Code already requires denial of tax exemption for all schools, religious or secular, that discriminate against racial minorities. To reduce the chance that the Supreme Court will embarrass the Administration by such a holding,11 the Administration seeks to withdraw the pending cases from that Court-not by stripping the Court of jurisdiction over such cases, a step that would require controversial legislative action by Congress, 12 but by the far simpler route of misleading the Court as to the facts of cases pending before it. It has been less than a decade since the United States Supreme Court in the Nixon Tapes Case proclaimed the necessity for full executive disclosure in pending judicial proceedings lest federal courts be induced to dispose of important matters on the basis of an incomplete or distorted record. See United States v. Nixon, 418 U.S. 683, 709 (1974). That this case involves a far more personable Chief Executive and a more urbane and sympathetic set of subordinates cannot be permitted to obscure the deeply distressing parallels between the two episodes. For the President to permit, and for the Attorney General to encourage, the filing of misleading submissions in the nation's highest court, without correction even when such submissions have become positively false, hardly seems consistent with the constitutional obligation of the Chief Executive, and of the highest-ranking law enforcement official in the land, to "take care that the laws be faithfully executed." 10 The first reference to this shift in the press, so far as I am aware, was a statement in the Feb. 1, 1982, Wall Street Journal, reporting that "[g]overnment lawyers are considering whether to update the court on developments, but hours of meetings between Treasury and Justice Department officials have failed to produce a consensus on what to say." P. 40, col. 4 (continued from p. 23, col. 3). The truth might be a start. 11 This risk, while perhaps reduced by the doubts expressed in Prince Edward school Foundation v. United States, 101 S.Ct. 1408 (1981) (Rehnquist, J., joined by Stewart and Powell, JJ., dissenting from denial of certiorari), obviously remains considerable. 12 See Tribe, "Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts," 16 Harv. Civ. Rts-Civ. Lib. L. Rev. 129 (1981). IV. Conclusions It would appear that the Attorney General, and indeed the President himself, owe Congress and this Committee an accounting-not only for their proposed expenditure of federal tax revenues, collected from black and white taxpayers alike, to support racially discriminatory schools, but also for their ongoing deployment of tax dollars in a campaign calculated to conceal awkward truths about the state of the applicable law, and to obstruct judicial clarification by steps as extreme as misleading the United States Supreme Court about key facts bearing on the Court's jurisdiction to provide such clarification in a pending case. If the Ways and Means Committee shares my conclusion that the problem exposed by the Administration's recent actions is less one of tax policy than one of ethics of cynical disregard for truth, calculated defiance of law, and callous disrespect for the equal dignity of all citizens-then this Committee might well urge the appropriate bodies in the House to set in motion a full-scale investigation into how such breaches of constitutional duty came to pass-and into the remedies Congress might most appropriately invoke. SUPPLEMENTARY STATEMENT OF PROF. LAURENCE H. TRIBE ON THE "CONCURRENT The currently emerging "compromise" of a Concurrent Resolution retroactively ratifying or approving the decade-old IRS practice of denying favored tax status to schools that engage in racial discrimination is constitutionally doubtful and would indeed be dangerous. 1. Under Article I, Section 7, Clause 3 of the Constitution, a Resolution that is neither signed by the President nor passed over his veto cannot have the effect of legislation. The Constitution gives Congress only one way to make laws; expressing the "sense" of the House and/or the Senate is not it. 2. Viewed instead as an expression of Congress' current views about the correct interpretation of the Internal Revenue Code, a Resolution would be, at best, an exercise in futility-transparently political in purpose, and of questionable legal effect. As the Supreme Court has repeatedly held, "the views of one Congress as to the construction of a statute adopted many years before by another Congress have 'very little, if any, significance." United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1968) (quoting Rainwater v. United States, 356 U.S. 590, 593 (1958)). 3. If designed to affect pending judicial proceedings, such a Resolution would, in addition, violate basic separation-of-powers principles, which dictate that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Čranch) 137, 177–78 (1803). It is axiomatic that Congress may share neither the judicial role of interpreting extant laws nor the executive role of administering and enforcing those laws. It is ironic that the Reagan Administration and its Justice Department have emphatically made just this point in pressing a constitutional challenge to legislative veto provisions, a challenge that led the Ninth Circuit to strike down legislative vetoes in Chadha v. Immigration & Naturalization Service, 634 F.2d 408, 431-34 (1980) (to be argued in the Supreme Court this February 22) and the District of Columbia Circuit to do likewise in Consumer Energy Council of America v. Federal Energy Regulatory Commission, No. 802184 (January 29, 1982). As the Supreme Court held in a landmark decision shortly after the Civil War, an attempt by Congress to instruct the federal judiciary on the correct resolution of pending legal questions "passe[s] the limit which separates the legislative from the judicial power" and is thus null and void. United States v. Klein, 80 U.S. (13 Wall.) 128, 146–47 (1872). Cf. Buckley v. Valeo, 424 U.S. 1, 120-24, 133-43 (1976). 4. Finally, taking the Resolution approach here would create an awful dilemma. Regarding an advisory resolution as necessary to shore up a decade-old IRS interpretation that has repeatedly been upheld by the courts would either set a dangerous precedent for the multitude of other areas in which Congress would then be asked to vote up or down on Treasury or other agency practices or rulings or regulations, or would represent a racially discriminatory defiance of precedent in which only black schoolchildren and their parents must go the resolution route. For if only black children and their parents must obtain congressional resolutions to ratify their administrative and judicial victories, then we are operating under a deeply racist double standard-one violative of equal protection. See Hunter v. Erickson, 393 U.S. 385 (1969) (striking down two-track system under which laws to combat private racial discrimination in housing were harder to enact than laws addressing other housing matters). If, on the other hand, everyone is to be subjected to a resolution requirement, then thousands of entirely lawful practices and regulations will be cast into a debilitating limbo of doubt unless Congress clogs its agenda with the impossible task of reviewing and approving every last one. ADDENDUM TO SUPPLEMENTARY STATEMENT OF LAURENCE H. TRIBE The only Concurrent Resolution that might avoid the problems identified in my supplementary statement would, in my judgment, be a resolution along the following lines: Whereas the commitment of the United States of America to racially integrated education and to racial justice under law must not be compromised or cast into doubt; and Whereas orderly statutory, administrative, and judicial procedures must not be abrogated, disregarded, or circumvented, Be it resolved, as expressing the sense of the House of Representatives and of the Senate of the United States: 1. That the Executive Branch should be censured for having acted improvidently and in derogation of its duty faithfully to execute the Constitution and Laws of the United States when it unilaterally proclaimed on January 8, 1982, a policy of favored tax treatment for racially discriminatory private schools and for those who contribute to such schools, and accordingly abandoned its previously announced defense in the Supreme Court of the long-standing anti/discrimination rules and practices followed by the Internal Revenue Service and consistently upheld by the federal courts; 2. That the Justice Department in particular is deserving of censure for having knowingly withheld from the Supreme Court, for a substantial period commencing on January 18, 1982, information crucial to the continuing jurisdiction of that Court to decide the validity of Internal Revenue Service anti-discrimination rules and practices sustained by the Fourth Circuit Court of Appeals and pending on review in the Supreme Court; and 3. That the President of the United States, the Attorney General, and the Secretary of the Treasury should, in the uncompromising discharge of their constitutional oaths of office, forthwith take all steps necessary and proper to assure the full and vigorous enforcement of the anti-discrimination tax rulings now pending before the Supreme Court, and to resume the defense in that Court of the statutory and constitutional validity of those rulings, as upheld by the Fourth Circuit Court of Appeals. Explanation. Such a resolution would restore the status quo ante without purporting to instruct the courts on questions of law, without presuming to inject Congress into the administrative process, and without either setting a dangerous precedent of congressional review of all administrative action or adopting a racist double standard in which only racial minorities must appeal to Congress before their victories in the administrative and judicial arenas are accepted as law. Chairman ROSTENKOWSKI. Professor Rosenthal. The Chair would like to make an observation. It is not unusual for this committee to sit through lunch. Thus, it is the intention of the Chair to work at least through lunch to proceed with questions and exchanges. However, it is also the Chair's intention to have the administration's witnesses at the witness table no later than 1 p.m. Professor Rosenthal, you may proceed. STATEMENT OF ALBERT J. ROSENTHAL, DEAN, COLUMBIA UNIVERSITY SCHOOL OF LAW Mr. ROSENTHAL. Thank you, Mr. Chairman, and ladies and gentlemen. My name is Albert J. Rosenthal, Dean of Columbia University School of Law. I apologize. I have not prepared a written statement for the committee. I found out too late to be able to put one together. If the transcript of my remarks contains sufficent deathless prose that would be worth preserving, I will be very happy to duplicate them, edit them a bit, improve the grammar and send them to you. I would like to address the question of tax exemptions to educational institutions that discriminate on the basis of race or color, what the present law is, and what need there might be, if any, for any new legislation on the subject. I will avoid getting into any question involving the activities of the Reagan administration or some of its officials or speculating as to what might or might not have motivated various things that they have done and narrow my comments to the legal issues. As Professor Tribe has pointed out, section 501(c)(3) of the Internal Revenue Code provides tax-exempt status to certain charitable, educational, and other organizations, which exempts some of their income from various forms of taxation, such as unemployment insurance taxes on social security, and so forth. Perhaps more important as a corollary to it is that, with very minor exceptions contributors to organizations that qualify under 501 for tax exemption receive tax deductions under section 170(c)(3). The rule that such tax-exempt status does not apply to educational institutions that discriminate among their students on the basis of race or color is not an invention of zealous administrators of the Internal Revenue Service. It was compelled by the courts. There is a solid line of judicial decisions requiring the Internal Revenue Service to do this whether it wanted to or not, under both statutory construction principles and also on the ground that there were constitutional reasons to suggest that any other construction of the relevant statutes might give rise to serious constitional problems. There has also been what I think any lawyer would regard as clear acquiescence by Congress in a period of about 11 years since the case of Green v. Connally, in which the Congress and perhaps particularly the committees that have been concerned with taxation have been involved in issues closely related to this and yet have never seen fit to overturn the denial of exemptions to those schools which discriminated on the basis of race. New tax laws have come and gone during this 11-year period. There was considerable attention given to the subject of education, and particularly its racial aspects. There has been legislation relating to busing. There was a removal of tax exemption to certain social clubs that excluded members on the ground of race and other disqualifying features of that kind, and then finally there were the resolutions attached as riders to appropriation bills that limited certain IRS procedures for obtaining information from schools that claimed such exemptions as to their actual practices with respect to admission of minority students. In every one of those instances, with all of this attention given to the subject, the basic principle that had existed at least since it was required by the courts in Green v. Connally has been reaffirmed. To go back a bit in history, starting with Brown v. Board of Education in 1954, segregation by public schools was held unconstitutional under the 14th amendment as we all know. The private segregated schools arose in certain parts of the country as a response for those people who preferred to send their children to all-white schools. The question arose as to whether such private segregated schools should be given tax-exempt status. The Internal Revenue Service initially took a rather cautious attitude to this problem, and since the basic assumption of Brown v. Board of Education and related |