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Justice and Mr. Thurmond

The Ronald Reagan landslide suggested how many Americans respond to his call to get government off the backs of the people. But do the people want this admirable goal confused with getting government out of enforcing the laws and upholding the Constitution? Of course not. This is why they should not overlook the way the incoming chairman of the Senate Judiciary Committee, Strom Thurmond, is talking about his agenda -- and the way he and colleague Jesse Helms have already achieved an unprecedented step toward preventing the Justice Department from carrying out its enforcement duties.

This step is directed against court-ordered busing as a means of ending violation of school desegregation law. But, to listen to Mr. Thurmond, he would go on in the new Republican-controlled Senate to try to remove the whole field of education from the jurisdiction of the federal courts, including the Supreme Court. Thus the door would be open to avoiding not only the desegregation now found to be required under the Constitution but the ban on school prayers now judged to defy the constitutional separation of church and state.

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Also on Mr. Thurmond's reported list is repealing or revising the Voting Rights Act and legislating capital punishment. His imminent judiciary powers give his views special weight as Congress chooses between versions of a new criminal code that provide greater or lesser protection of civil liberties.

Senator Thurmond says he is against discrimination. So are many others who oppose mandatory busing or other given remedies for meeting desegregation standards. The merits of busing are in dispute. The latest study, sponsored by the National Institute of Education, finds that central city busing encourages white flight but that metropolitan- based busing encourages desegregation in housing as well as education and thus helps to remove the need for busing.

But the degree of effectiveness or public approval of busing is not the key point in this week's congressional step. It is whether the Congress should deny the Justice Department a major option in seeking to do its task of enforcing desegregation law. The Senate has now joined the House in using an appropriations bill to prohibit the Justice Department from spending funds on actions to obtain court-ordered busing. As Attorney General Civiletti said, this is "an unworkable and unnecessary challenge to this department's authority to conduct litigation to achieve compliance with constitutional demands." One question involves the effect of the measure when a judge orders Justice Department officials to enforce a busing order.

The vote in the Senate, which had been more reluctant than the House to accept the amendment, was interpreted in part as reflecting the jolt of the election. It will be up to the people represented by Congress to let Capitol Hill know if they intended the election to mean hampering enforcement of the law.

Meanwhile, President Carter can show his mettle by vetoing the appropriation bill -- which, incidentally, would also cut off Commerce Department funds for carrying out his Soviet grain embargo. If Congress does not override the veto, necessary departmental funding could be continued until the next Congress. The antibusing sentiment will probably be no less then. But, instead of lame ducks taking pot shots at the Justice Department, there will be a new team with the opportunity to gain public confidence by an airing of the whole matter of how far Congress should hamper the executive's ability to act.

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