Katzenbach v. McClung: Title II and the Commerce Clause

Katzenbach v. McClung was a unanimous Supreme Court decision issued on December 14, 1964, holding that Congress could prohibit racial discrimination at a small family-owned restaurant in Birmingham, Alabama under the Commerce Clause because 46 percent of the food the restaurant bought had originated outside the state. Writing for the Court, Justice Tom Clark concluded that Title II of the Civil Rights Act of 1964 reached even a purely local business when the goods it sold moved in interstate commerce, and that Congress had a rational basis for treating restaurant discrimination as a burden on that commerce.¹

The Restaurant and the Lawsuit

Ollie McClung ran Ollie’s Barbecue, a Birmingham restaurant that had been open since 1927. It seated 220 people and employed 36, two-thirds of them Black. It also refused to seat Black customers in the dining room. Black patrons could order only through a take-out window.¹

When the Civil Rights Act of 1964 became law, McClung went to court to block it from applying to him. His argument was that the restaurant was a local business with no meaningful tie to interstate commerce, so Congress had no authority to regulate whom he served. A three-judge federal district court agreed and enjoined enforcement, finding no demonstrable link between the food the restaurant bought from out of state and Congress’s conclusion that restaurant discrimination affected interstate commerce.¹

Acting Attorney General Nicholas Katzenbach appealed directly to the Supreme Court, which reversed.

What Title II Required

Title II of the Civil Rights Act, codified at 42 U.S.C. 2000a, guarantees equal access to public accommodations regardless of race, color, religion, or national origin. It reaches businesses that offer lodging, food, or entertainment to the public, provided they have a connection to interstate commerce.²

For a restaurant, that connection can be shown two ways. Either the restaurant serves or offers to serve interstate travelers, or a substantial portion of the food it sells has moved across state lines. Ollie’s Barbecue drew a local clientele and did not cater to travelers. The whole case therefore turned on whether enough of its food had crossed state lines to bring it within federal reach.²

Why the Commerce Clause Reached a Local Restaurant

The Commerce Clause, in Article I, Section 8, Clause 3 of the Constitution, gives Congress the power to regulate commerce among the states.³ By 1964 the Court had already read that power broadly. In Wickard v. Filburn (1942), it upheld a federal penalty against an Ohio farmer who grew more wheat than his federal allotment allowed, reasoning that one farmer’s surplus was trivial but the combined effect of many farmers doing the same would distort the national market.⁴ That aggregation idea did the heavy lifting in McClung. One restaurant’s discrimination might look local, but restaurants as a class were another matter.

The evidence on the goods was concrete. In the twelve months before the Act, Ollie’s Barbecue bought roughly $150,000 worth of food, and $69,683 of that, 46 percent, was meat purchased from a local supplier who had procured it from outside Alabama.¹ McClung argued that the local middleman broke the chain, because the restaurant never dealt directly with any out-of-state supplier. The Court disagreed. What mattered was that the meat had originated across state lines, not the route it took to the kitchen.

On the constitutional question, the Court applied the rational basis test. The issue was not whether Ollie’s Barbecue by itself harmed interstate commerce, but whether Congress had a rational basis for concluding that restaurant discrimination, taken as a class, burdened that commerce. Congressional findings had shown that discrimination discouraged travel, cut spending in areas where it was common, and depressed demand for goods shipped between states. Congress did not need to prove those effects with scientific precision. A reasonable connection was enough, and the Court accepted it.¹

The practical effect was sweeping. Almost every restaurant in the country buys some food that has crossed state lines. By setting the statutory bar at a “substantial portion” rather than a direct out-of-state contract, Congress made it very hard for any public restaurant to claim exemption.

Heart of Atlanta Motel: The Companion Case

The Court decided Heart of Atlanta Motel, Inc. v. United States the same day. That case involved a large motel near two interstate highways in downtown Atlanta that advertised in national magazines, kept more than 50 highway billboards, drew about 75 percent of its guests from outside Georgia, and refused to rent rooms to Black travelers. The Court had little difficulty concluding that a business so tied to interstate travel fell within Congress’s commerce power.⁵

McClung was the harder case, and that is why it carries more weight as precedent. A neighborhood barbecue restaurant with no out-of-state advertising, no tourist customers, and no direct interstate supplier was still covered because of where its meat came from. If Ollie’s Barbecue could be reached, so could nearly any restaurant in the country.

Douglas and the Fourteenth Amendment

All nine justices agreed on the result, but Justices Douglas, Goldberg, and Black wrote separately. Justice Clark’s majority opinion rested entirely on the Commerce Clause.¹ Justice Douglas had long argued that the Fourteenth Amendment’s Equal Protection Clause was a more direct basis for civil rights legislation. Framing desegregation as a commerce problem, in his view, treated racial discrimination as an economic inconvenience rather than the constitutional wrong it was.

Congress had chosen the Commerce Clause in 1964 partly because Fourteenth Amendment doctrine at the time was understood to limit federal power to state action, not private conduct. The Commerce Clause carried no such limitation, which made it the more reliable route to regulating private discrimination.

Is Katzenbach v. McClung Still Good Law?

Yes. For three decades after the decision, the Commerce Clause appeared to have almost no outer limit. That changed with United States v. Lopez in 1995, where the Court struck down the Gun-Free School Zones Act on the ground that possessing a firearm near a school was not economic activity and had no meaningful tie to interstate commerce. Chief Justice Rehnquist’s majority opinion laid out a stricter framework, asking whether the regulated activity is economic, whether the item moved in interstate commerce, whether Congress made findings linking the activity to commerce, and how attenuated the connection is.⁶

Lopez did not overrule McClung. Restaurant discrimination involves commercial activity with a supply-chain link to interstate markets, which is exactly the kind of connection Rehnquist’s framework preserves. Gun possession near a school did not clear that bar, and arguments about insurance costs, travel, and education were rejected as too speculative to compare with concrete food-purchase evidence.⁶

The Court drew another line in National Federation of Independent Business v. Sebelius in 2012. A majority held that Congress can regulate people already engaged in economic activity but cannot use the Commerce Clause to compel people to enter commerce in the first place. The power to regulate commerce, Chief Justice Roberts wrote, presupposes commercial activity to regulate.⁷

Katzenbach v. McClung sits comfortably inside even the modern framework. Ollie’s Barbecue was already engaged in commerce, it bought goods that had crossed state lines, and Congress had made detailed findings about how discrimination burdened interstate trade. The decision remains one of the clearest illustrations of how far the Commerce Clause can reach into activity that looks, at first glance, entirely local.

1
Justia U.S. Supreme Court Center. Katzenbach v. McClung, 379 U.S. 294 (1964)
2
Office of the Law Revision Counsel. 42 USC 2000a – Prohibition Against Discrimination or Segregation in Places of Public Accommodation
3
Library of Congress. Constitution Annotated – Article 1, Section 8, Clause 3
4
Justia U.S. Supreme Court Center. Wickard v. Filburn, 317 U.S. 111 (1942)
5
Justia U.S. Supreme Court Center. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
6
Justia U.S. Supreme Court Center. United States v. Lopez, 514 U.S. 549 (1995)
7
Justia U.S. Supreme Court Center. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)