ACTS OF CONGRESS

HELD UNCONSTITUTIONAL IN WHOLE OR

IN PART BY THE

SUPREME COURT OF THE UNITED STATES

2293

ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN

WHOLE OR IN PART BY THE SUPREME COURT

OF THE UNITED STATES

1. Act of September 24, 1789 (1 Stat. 81, § 13, in part).

Provision that “[the Supreme Court] shall have power to issue . . .

writs of mandamus, in cases warranted by the principles and usages

of law, to any . . . persons holding office, under authority of the United

States” as applied to the issue of mandamus to the Secretary of State

requiring him to deliver to plaintiff a commission (duly signed by the

President) as justice of the peace in the District of Columbia held an

attempt to enlarge the original jurisdiction of the Supreme Court, fixed

by Article III, § 2.

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).

2. Act of February 20, 1812 (2 Stat. 677).

Provisions establishing board of revision to annul titles conferred

many years previously by governors of the Northwest Territory were

held violative of the due process clause of the Fifth Amendment.

Reichart v. Felps, 73 U.S. (6 Wall.) 160 (1868).

3. Act of March 6, 1820 (3 Stat. 548, § 8, proviso).

The Missouri Compromise, prohibiting slavery within the Louisiana Territory north of 36°30' except Missouri, held not warranted as a

regulation of Territory belonging to the United States under Article

IV, § 3, clause 2 (and see Fifth Amendment).

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

Concurring: Taney, C.J.

Concurring specially: Wayne, Nelson, Grier, Daniel, Campbell, Catron

Dissenting: McLean, Curtis

4. Act of February 25, 1862 (12 Stat. 345, § 1); July 11, 1862 (12 Stat. 532,

§ 1); March 3, 1863 (12 Stat. 711, § 3), each in part only.

“Legal tender clauses,” making noninterest-bearing United States

notes legal tender in payment of “all debts, public and private,” so far

as applied to debts contracted before passage of the act, held not within

express or implied powers of Congress under Article I, § 8, and inconsistent with Article I, § 10, and Fifth Amendment.

Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870); overruled in Knox v. Lee

(Legal Tender Cases), 79 U.S. (12 Wall.) 457 (1871).

Concurring: Chase, C.J., Nelson, Clifford, Grier, Field

Dissenting: Miller, Swayne, Davis

2295
5. Act of May 20, 1862 (§ 35, 12 Stat. 394); Act of May 21, 1862 (12 Stat.

407); Act of June 25, 1864 (13 Stat. 187); Act of July 23, 1866 (14 Stat.

216); Revised Statutes Relating to the District of Columbia, Act of June

22, 1874, (§§ 281, 282, 294, 304, 18 Stat. pt. 2).

Provisions of law requiring, or construed to require, racial separation in the schools of the District of Columbia, held to violate the equal

protection component of the due process clause of the Fifth Amendment.

Bolling v. Sharpe, 347 U.S. 497 (1954).

6. Act of March 3, 1863 (12 Stat. 756, § 5)

“So much of the fifth section . . . as provides for the removal of a

judgment in a State court, and in which the cause was tried by a jury

to the circuit court of the United States for a retrial on the facts and

law, is not in pursuance of the Constitution, and is void” under the

Seventh Amendment.

The Justices v. Murray, 76 U.S. (9 Wall.) 274 (1870).

7. Act of March 3, 1863 (12 Stat. 766, § 5)

Provision for an appeal from the Court of Claims to the Supreme

Court—there being, at the time, a further provision (§ 14) requiring

an estimate by the Secretary of the Treasury before payment of final

judgment, held to contravene the judicial finality intended by the Constitution, Article III.

Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864).(Case was dismissed without opinion; the grounds upon which this decision was made were stated in

a posthumous opinion by Chief Justice Taney printed in the appendix to volume 117 U.S. 697.)

8. Act of June 30, 1864 (13 Stat. 311, § 13)

Provision that “any prize cause now pending in any circuit court

shall, on the application of all parties in interest . . . be transferred

by that court to the Supreme Court . . . ,” as applied in a case where

no action had been taken in the Circuit Court on the appeal from the

district court, held to propose an appeal procedure not within Article

III, § 2.

The Alicia, 74 U.S. (7 Wall.) 571 (1869).

9. Act of January 24, 1865 (13 Stat. 424)

Requirement of a test oath (disavowing actions in hostility to the

United States) before admission to appear as attorney in a federal court

by virtue of any previous admission, held invalid as applied to an attorney who had been pardoned by the President for all offenses dur2296 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
ing the Rebellion—as ex post facto (Article I, § 9, clause 3) and an interference with the pardoning power (Article II, § 2, clause 1).

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

Concurring: Field, Wayne, Grier, Nelson, Clifford

Dissenting: Miller, Swayne, Davis, Chase, C.J.

10. Act of March 2, 1867 (14 Stat. 484, § 29)

General prohibition on sale of naphtha, etc., for illuminating purposes, if inflammable at less temperature than 110° F., held invalid

“except so far as the section named operates within the United States,

but without the limits of any State,” as being a mere police regulation.

United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1870).

11. Act of May 31, 1870 (16 Stat. 140, §§ 3, 4)

Provisions penalizing (1) refusal of local election official to permit

voting by persons offering to qualify under State laws, applicable to

any citizens; and (2) hindering of any person from qualifying or voting, held invalid under Fifteenth Amendment.

United States v. Reese, 92 U.S. 214 (1876).

Concurring: Waite, C.J., Miller, Field, Bradley, Swayne, Davis, Strong

Dissenting: Clifford, Hunt

12. Act of July 12, 1870 (16 Stat. 235)

Provision making Presidential pardons inadmissible in evidence in

Court of Claims, prohibiting their use by that court in deciding claims

or appeals, and requiring dismissal of appeals by the Supreme Court

in cases where proof of loyalty had been made otherwise than as prescribed by law, held an interference with judicial power under Article

III, § 1, and with the pardoning power under Article II, § 2, clause 1.

United States v. Klein, 80 U.S. (13 Wall.) 128 (1872).

Concurring: Chase, C.J., Nelson, Swayne, Davis, Strong, Clifford, Field

Dissenting: Miller, Bradley

13. Act of March 3, 1873 (ch. 258, § 2, 17 Stat. 599, recodified in 39 U.S.C.

§ 3001(e)(2))

Comstock Act provision barring from the mails any unsolicited advertisement for contraceptives, as applied to circulars and flyers promoting prophylactics or containing information discussing the desirability and availability of prophylactics, violates the free speech clause

of the First Amendment.

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

Justices concurring: Marshall, White, Blackmun, Powell, Burger, C.J.

Justices concurring specially: Rehnquist, O’Connor, Stevens

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2297
14. Act of June 22, 1874 (18 Stat. 1878, § 4)

Provision authorizing federal courts, in suits for forfeitures under

revenue and custom laws, to require production of documents, with

allegations expected to be proved therein to be taken as proved on failure to produce such documents, was held to violate of the Search and

Seizure Clause of the Fourth Amendment and the Self-Incrimination

Clause of the Fifth Amendment.

Boyd v. United States, 116 U.S. 616 (1886).

Concurring: Bradley, Field, Harlan, Woods, Matthews, Gray, Blatchford

Concurring specially: Miller, Waite, C.J.

15. Revised Statutes 1977 (Act of May 31, 1870, § 16, 16 Stat. 144)

Provision that “all persons within the jurisdiction of the United

States shall have the same right in every State and Territory to make

and enforce contracts . . . as is enjoyed by white citizens . . . ,” held

invalid under the Thirteenth Amendment.

Hodges v. United States, 203 U.S. 1 (1906), overruled in Jones v. Alfred H. Mayer

Co., 392 U.S. 409, 441–43 (1968).

Concurring: Brewer, Brown, Fuller, Peckham, McKenna, Holmes, Moody,

White, C.J.

Dissenting: Harlan, Day

16. Revised Statutes 4937–4947 (Act of July 8, 1870, 16 Stat. 210), and Act

of August 14, 1876 (19 Stat. 141)

Original trademark law, applying to marks “for exclusive use within

the United States,” and a penal act designed solely for the protection

of rights defined in the earlier measure, held not supportable by Article I, § 8, clause 8 (Copyright Clause), nor Article I, § 8, clause 3,

because of its application to intrastate as well as interstate commerce.

Trade-Mark Cases, 100 U.S. 82 (1879).

17. Revised Statutes 5132, subdivision 9 (Act of March 2, 1867, 14 Stat. 539)

Provision penalizing “any person respecting whom bankruptcy proceedings are commenced . . . who, within 3 months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of

trade, obtains on credit from any person any goods or chattels with

intent to defraud . . . ,” held a police regulation not within the bankruptcy power (Article I, § 4, clause 4).

United States v. Fox, 95 U.S. 670 (1878).

18. Revised Statutes 5507 (Act of May 31, 1870, § 5, 16 Stat. 141)

Provision penalizing “[e]very person who prevents, hinders, controls, or intimidates another from exercising, or in exercising the right

2298 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
of suffrage, to whom that right is guaranteed by the Fifteenth Amendment to the Constitution of the United States, by means of bribery or

threats . . . ,” held not authorized by the Fifteenth Amendment.

James v. Bowman, 190 U.S. 127 (1903).

Concurring: Brewer, Fuller, Peckham, Holmes, Day, White, C.J.

Dissenting: Harlan, Brown

19. Revised Statutes 5519 (Act of April 20, 1871, 17 Stat. 13, § 2)

Section providing punishment in case “two or more persons in any

State . . . conspire . . . for the purpose of depriving . . . any person

. . . of the equal protection of the laws . . . or for the purpose of preventing or hindering the constituted authorities of any State . . . from

giving or securing to all persons within such State . . . the equal protection of the laws . . . ,” held invalid as not being directed at state

action proscribed by the Fourteenth Amendment.

United States v. Harris, 106 U.S. 629 (1883).

Concurring: Woods, Miller, Bradley, Gray, Field, Matthews, Blatchford, White, C.J.

Dissenting: Harlan

20. Revised Statutes of the District of Columbia, § 1064 (Act of June 17, 1870,

16 Stat. 154,§ 3)

Provision that “prosecutions in the police court [of the District of

Columbia] shall be by information under oath, without indictment by

grand jury or trial by petit jury,” as applied to punishment for conspiracy, held to contravene Article III, § 2, clause 3, requiring jury trial

of all crimes.

Callan v. Wilson, 127 U.S. 540 (1888).

21. Act of March 1, 1875 (18 Stat. 336, §§ 1, 2)

Provision “That all persons within the jurisdiction of the United

States shall be entitled to the full and equal enjoyment of the accommodations . . . of inns, public conveyances on land or water, theaters,

and other places of public amusement; subject only to the conditions

and limitations established by law, and applicable alike to citizens of

every race and color, regardless of any previous condition of servitude”—

subject to penalty, held not to be supported by the Thirteenth or Fourteenth Amendments.

Civil Rights Cases, 109 U.S. 3 (1883), as to operation within states.

Concurring: Bradley, Miller, Field, Woods, Matthews, Gray, Blatchford, Waite, C.J.

Dissenting: Harlan

22. Act of March 3, 1875 (18 Stat. 479, § 2)

Provision that “if the party [i.e., a person stealing property from

the United States] has been convicted, then the judgment against him

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2299
shall be conclusive evidence in the prosecution against [the] receiver

that the property of the United States therein described has been embezzled, stolen, or purloined,” held to contravene the Sixth Amendment.

Kirby v. United States, 174 U.S. 47 (1899).

Concurring: Harlan, Gray, Shiras, White, Peckham, Fuller, C.J.

Dissenting: Brown, McKenna

23. Act of July 12, 1876 (19 Stat. 80, § 6, in part)

Provision that “postmasters of the first, second, and third classes

. . . may be removed by the President by and with the advice and consent of the Senate,” held to infringe the executive power under Article

II, § 1, clause 1.

Myers v. United States, 272 U.S. 52 (1926).

Concurring: Taft, C.J., Van Devanter, Sutherland, Butler, Sanford, Stone

Dissenting: Holmes, McReynolds, Brandeis

24. Act of August 11, 1888 (25 Stat. 411)

Directive, in a provision for the purchase or condemnation of a

certain lock and dam in the Monongahela River, that “. . . in estimating the sum to be paid by the United States, the franchise of said corporation to collect tolls shall not be considered or estimated . . . ,” held

to contravene the Fifth Amendment.

Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893).

25. Act of May 5, 1892 (27 Stat. 25, § 4)

Provision of a Chinese exclusion act, that Chinese persons “convicted and adjudged to be not lawfully entitled to be or remain in the

United States shall be imprisoned at hard labor for a period not exceeding 1 year and thereafter removed from the United States . . . ”

(such conviction and judgment being had before a justice, judge, or commissioner upon a summary hearing), held to contravene the Fifth and

Sixth Amendments.

Wong Wing v. United States, 163 U.S. 228 (1896).

Concurring: Shiras, Harlan, Gray, Brown, White, Peckham, Fuller, C.J.

Concurring in part and dissenting in part: Field

26. Joint Resolution of August 4, 1894 (28 Stat. 1018, No. 41)

Provision authorizing the Secretary of the Interior to approve a

second lease of certain land by an Indian chief in Minnesota (granted

to lessor’s ancestor by art. 9 of a treaty with the Chippewa Indians),

held an interference with judicial interpretation of treaties under Article III, § 2, clause 1 (and repugnant to the Fifth Amendment).

2300 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
Jones v. Meehan, 175 U.S. 1 (1899).

27. Act of August 27, 1894 (28 Stat. 553–60, §§ 27–37)

Income tax provisions of the tariff act of 1894. “The tax imposed

by §§ 27 and 37, inclusive . . . so far as it falls on the income of real

estate and of personal property, being a direct tax within the meaning

of the Constitution, and, therefore, unconstitutional and void because

not apportioned according to representation [Article I, § 2, clause 3],

all those sections, constituting one entire scheme of taxation, are necessarily invalid” (158 U.S. 601, 637).

Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), and rehearing, 158

U.S. 601 (1895).

Concurring: Fuller, C.J., Gray, Brewer, Brown, Shiras, Jackson

Concurring specially: Field

Dissenting: White, Harlan

28. Act of January 30, 1897 (29 Stat. 506)

Prohibition on sale of liquor “to any Indian to whom allotment of

land has been made while the title to the same shall be held in trust

by the Government . . . ,” held a police regulation infringing state powers, and not warranted by the Commerce Clause, Article I, § 8, clause

3.

Matter of Heff, 197 U.S. 488 (1905), overruled in United States v. Nice, 241

U.S. 591 (1916).

Concurring: Brewer, Brown, White, Peckham, McKenna, Holmes, Day, Fuller, C.J.

Dissenting: Harlan

29. Act of June 1, 1898 (30 Stat. 428)

Section 10, penalizing “any employer subject to the provisions of

this act” who should “threaten any employee with loss of employment

. . . because of his membership in . . . a labor corporation, association, or organization” (the act being applicable “to any common carrier

. . . engaged in the transportation of passengers or property . . . from

one State . . . to another State . . . ,” etc.), held an infringement of

the Fifth Amendment and not supported by the Commerce Clause.

Adair v. United States, 208 U.S. 161 (1908).

Concurring: Harlan, Brewer, White, Peckham, Day, Fuller, C.J.

Dissenting: McKenna, Holmes

30. Act of June 13, 1898 (30 Stat. 448, 459)

Stamp tax on foreign bills of lading, held a tax on exports in violation of Article I, § 9.

Fairbank v. United States, 181 U.S. 283 (1901).

Concurring: Brewer, Brown, Shiras, Peckham, Fuller, C.J.

Dissenting: Harlan, Gray, White, McKenna

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2301
31. Same (30 Stat. 448, 460)

Tax on charter parties, as applied to shipments exclusively from

ports in United States to foreign ports, held a tax on exports in violation of Article I, § 9.

United States v. Hvoslef, 237 U.S. 1 (1915).

32. Same (30 Stat. 448, 461)

Stamp tax on policies of marine insurance on exports, held a tax

on exports in violation of Article I, § 9.

Thames & Mersey Marine Ins. Co. v. United States, 237 U.S. 19 (1915).

33. Act of June 6, 1900 (31 Stat. 359, § 171)

Section of the Alaska Code providing for a six-person jury in trials for misdemeanors, held repugnant to the Sixth Amendment, requiring “jury” trial of crimes.

Rassmussen v. United States, 197 U.S. 516 (1905).

Concurring: White, Brewer, Peckham, McKenna, Holmes, Day, Fuller, C.J.

Concurring specially: Harlan, Brown

34. Act of March 3, 1901 (31 Stat. 1341, § 935)

Section of the District of Columbia Code granting the same right

of appeal, in criminal cases, to the United States or the District of

Columbia as to the defendant, but providing that a verdict was not to

be set aside for error found in rulings during trial, held an attempt to

take an advisory opinion, contrary to Article III, § 2.

United States v. Evans, 213 U.S. 297 (1909).

35. Act of June 11, 1906 (34 Stat. 232)

Act providing that “every common carrier engaged in trade or commerce in the District of Columbia . . . or between the several States

. . . shall be liable to any of its employees . . . for all damages which

may result from the negligence of any of its officers . . . or by reason

of any defect . . . due to its negligence in its cars, engines . . . roadbed,” etc., held not supportable under Article I, § 8, clause 3 because

it extended to intrastate as well as interstate commercial activities.

The Employers’ Liability Cases, 207 U.S. 463 (1908). The act was upheld as to

the District of Columbia in Hyde v. Southern Ry., 31 App. D.C. 466 (1908),

and, as to the territories, in El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87

(1909).

Concurring: White, Day

Concurring specially: Peckham, Brewer, Fuller, C.J.

Dissenting: Moody, Harlan, McKenna, Holmes

2302 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
36. Act of June 16, 1906 (34 Stat. 269, § 2)

Provision of Oklahoma Enabling Act restricting relocation of the

state capital prior to 1913, held not supportable by Article IV, § 3, authorizing admission of new states.

Coyle v. Smith, 221 U.S. 559 (1911).

Concurring: Lurton, White, Harlan, Day, Hughes, Van Devanter, Lamar

Dissenting: McKenna, Holmes

37. Act of February 20, 1907 (34 Stat. 889, § 3)

Provision in the Immigration Act of 1907 penalizing “whoever . . .

shall keep, maintain, control, support, or harbor in any house or other

place, for the purpose of prostitution . . . any alien woman or girl, within

3 years after she shall have entered the United States,” held an exercise of police power not within the control of Congress over immigration (whether drawn from the Commerce Clause or based on inherent

sovereignty).

Keller v. United States, 213 U.S. 138 (1909).

Concurring: Brewer, White, Peckham, McKenna, Day, Fuller, C.J.

Dissenting: Holmes, Harlan, Moody

38. Act of March 1, 1907 (34 Stat. 1028)

Provisions authorizing certain Indians “to institute their suits in

the Court of Claims to determine the validity of any acts of Congress

passed since . . . 1902, insofar as said acts . . . attempt to increase or

extend the restrictions upon alienation . . . of allotments of lands of

Cherokee citizens . . . ,” and giving a right of appeal to the Supreme

Court, held an attempt to enlarge the judicial power restricted by Article III, § 2, to cases and controversies.

Muskrat v. United States, 219 U.S. 346 (1911).

39. Act of May 27, 1908 (35 Stat. 313, § 4)

Provision making locally taxable “all land [of Indians of the Five

Civilized Tribes] from which restrictions have been or shall be removed,” held a violation of the Fifth Amendment, in view of the Atoka

Agreement, embodied in the Curtis Act of June 28, 1898, providing

tax-exemption for allotted lands while title in original allottee, not exceeding 21 years.

Choate v. Trapp, 224 U.S. 665 (1912).

40. Act of February 9, 1909, § 2 (35 Stat. 614, as amended)

Provision of Narcotic Drugs Import and Export Act creating a presumption that possessor of cocaine knew of its illegal importation into

the United States held, in light of the fact that more cocaine is produced domestically than is brought into the country and in absence of

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2303
any showing that defendant could have known his cocaine was imported, if it was, inapplicable to support conviction from mere possession of cocaine.

Turner v. United States, 396 U.S. 398 (1970).

Concurring specially: Black, Douglas

41. Act of August 19, 1911 (37 Stat. 28)

A proviso in § 8 of the Federal Corrupt Practices Act fixing a maximum authorized expenditure by a candidate for Senator “in any campaign for his nomination and election,” as applied to a primary election, held not supported by Article I, § 4, giving Congress power to regulate

the manner of holding elections for Senators and Representatives.

Newberry v. United States, 256 U.S. 232 (1921), overruled in United States v.

Classic, 313 U.S. 299 (1941).

Concurring: McReynolds, McKenna, Holmes, Day, Van Devanter

Concurring specially: Pitney, Brandeis, Clarke

Dissenting: White, C.J. (concurring in part)

42. Act of June 18, 1912 (37 Stat. 136, § 8)

Part of § 8 giving Juvenile Court of the District of Columbia (proceeding upon information) concurrent jurisdiction of desertion cases (which

were, by law, punishable by fine or imprisonment in the workhouse at

hard labor for 1 year), held invalid under the Fifth Amendment, which

gives right to presentment by a grand jury in case of infamous crimes.

United States v. Moreland, 258 U.S. 433 (1922).

Concurring: McKenna, Day, Van Devanter, Pitney, McReynolds

Dissenting: Brandeis, Holmes, Taft, C.J.

43. Act of March 4, 1913 (37 Stat. 988, part of par. 64)

Provision of the District of Columbia Public Utility Commission

Act authorizing appeal to the United States Supreme Court from decrees of the District of Columbia Court Appeals modifying valuation

decisions of the Utilities Commission, held an attempt to extend the

appellate jurisdiction of the Supreme Court to cases not strictly judicial within the meaning of Article III, § 2.

Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).

44. Act of September 1, 1916 (39 Stat. 675)

The original Child Labor Law, providing “that no producer . . . shall

ship . . . in interstate commerce . . . any article or commodity the product of any mill . . . in which within 30 days prior to the removal of

such product therefrom children under the age of 14 years have been

employed or permitted to work more than 8 hours in any day or more

2304 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
than 6 days in any week . . . ,” held not within the commerce power

of Congress.

Hammer v. Dagenhart, 247 U.S. 251 (1918).

Concurring: Day, Van Devanter, Pitney, McReynolds, White, C.J.

Dissenting: Holmes, McKenna, Brandeis, Clarke

45. Act of September 8, 1916 (39 Stat. 757, § 2(a), in part)

Provision of the income tax law of 1916, that a “stock dividend

shall be considered income, to the amount of its cash value,” held invalid (in spite of the Sixteenth Amendment) as an attempt to tax something not actually income, without regard to apportionment under Article I, § 2, clause 3.

Eisner v. Macomber, 252 U.S. 189 (1920)

Concurring: Pitney, McKenna, Van Devanter, McReynolds, White, C.J.

Dissenting: Holmes, Day, Brandeis, Clarke

46. Act of October 6, 1917 (40 Stat. 395)

The amendment of §§ 24 and 256 of the Judicial Code (which prescribe jurisdiction of district courts) “saving . . . to claimants the rights

and remedies under the workmen’s compensation law of any State,”

held an attempt to transfer federal legislative powers to the states—

the Constitution, by Article III, § 2, and Article I, § 8, having adopted

rules of general maritime law.

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920).

Concurring: McReynolds, McKenna, Day, Van Devanter, White, C.J.

Dissenting: Holmes, Pitney, Brandeis, Clarke

47. Act of September 19, 1918 (40 Stat. 960)

That part of the Minimum Wage Law of the District of Columbia

which authorized the Wage Board “to ascertain and declare . . . (a)

Standards of minimum wages for women in any occupation within the

District of Columbia, and what wages are inadequate to supply the

necessary cost of living to any such women workers to maintain them

in good health and to protect their morals . . . ,” held to interfere with

freedom of contract under the Fifth Amendment.

Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

Concurring: Sutherland, McKenna, Van Devanter, McReynolds, Butler

Dissenting: Taft, C.J., Sanford, Holmes

48. Act of February 24, 1919 (40 Stat. 1065, § 213, in part)

That part of § 213 of the of Revenue Act of 1919 which provided

that “. . . for the purposes of the title . . . the term ‘gross income’ . . .

includes gains, profits, and income derived from salaries, wages, or comACTS OF CONGRESS HELD UNCONSTITUTIONAL 2305
pensation for personal service (including in the case of . . . judges of

the Supreme and inferior courts of the United States . . . the compensation received as such) . . . ” as applied to a judge in office when the

act was passed, held a violation of the guaranty of judges’ salaries, in

Article III, § 1.

Evans v. Gore, 253 U.S. 245 (1920).Miles v. Graham, 268 U.S. 501 (1925), held

it invalid as applied to a judge taking office subsequent to the date of the

act. Both cases were overruled by O’Malley v. Woodrough, 307 U.S. 277 (1939).

Concurring: Van Devanter, McKenna, Day, Pitney, McReynolds, Clarke, White, C.J.

Dissenting: Holmes, Brandeis

49. Act of February 24, 1919 (40 Stat. 1097, § 402(c))

That part of the estate tax law providing that the “gross estate”

of a decedent should include value of all property “to the extent of any

interest therein of which the decedent has at any time made a transfer or with respect to which he had at any time created a trust, in

contemplation of or intended to take effect in possession or enjoyment

at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a bona

fide sale . . . ” as applied to a transfer of property made prior to the

act and intended to take effect in possession or enjoyment at death of

grantor, but not in fact testamentary or designed to evade taxation,

held confiscatory, contrary to Fifth Amendment.

Nichols v. Coolidge, 274 U.S. 531 (1927).

Concurring: McReynolds, Van Devanter, Sutherland, Butler, Taft, C.J.

Concurring specially (only in the result): Holmes, Brandeis, Sanford, Stone

50. Act of February 24, 1919, title XII (40 Stat. 1138, entire title)

The Child Labor Tax Act, providing that “every person . . . operating . . . any . . . factory . . . in which children under the age of 14

years have been employed or permitted to work . . . shall pay . . . in

addition to all other taxes imposed by law, an excise tax equivalent to

10 percent of the entire net profits received . . . for such year from

the sale . . . of the product of such . . . factory . . . ,” held beyond the

taxing power under Article I, § 8, clause 1, and an infringement of state

authority.

Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).

Concurring: Taft, C.J., McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds,

Brandeis

Dissenting: Clarke

51. Act of October 22, 1919 (41 Stat. 298, § 2), amending Act of August 10,

1917 (40 Stat. 277, § 4)

(a) § 4 of the Lever Act, providing in part “that it is hereby made

unlawful for any person willfully . . . to make any unjust or unreason2306 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
able rate or charge in handling or dealing in or with any necessaries

. . . ” and fixing a penalty, held invalid to support an indictment for

charging an unreasonable price on sale—as not setting up an ascertainable standard of guilt within the requirement of the Sixth Amendment.

United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).

Concurring: White, C.J., McKenna, Holmes, Van Devanter, McReynolds, Clarke

Concurring specially: Pitney, Brandeis

(b) That provision of § 4 making it unlawful “to conspire, combine, agree, or arrange with any other person to . . . exact excessive

prices for any necessaries” and fixing a penalty, held invalid to support an indictment, on the reasoning of the Cohen Grocery case.

Weeds, Inc. v. United States, 255 U.S. 109 (1921).

Concurring: White, C.J., McKenna, Holmes, Van Devanter, McReynolds, Clarke

Concurring specially: Pitney, Brandeis

52. Act of August 24, 1921 (42 Stat. 187, Future Trading Act)

(a) § 4 (and interwoven regulations) providing a “tax of 20 cents a

bushel on every bushel involved therein, upon each contract of sale of

grain for future delivery, except . . . where such contracts are made

by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a ‘contract market’ . . . ,” held

not within the taxing power under Article I, § 8.

Hill v. Wallace, 259 U.S. 44 (1922).

(b) § 3, providing “That in addition to the taxes now imposed by

law there is hereby levied a tax amounting to 20 cents per bushel on

each bushel involved therein, whether the actual commodity is intended to be delivered or only nominally referred to, upon each . . .

option for a contract either of purchase or sale of grain . . . ,” held

invalid on the same reasoning.

Trusler v. Crooks, 269 U.S. 475 (1926).

53. Act of November 23, 1921 (42 Stat. 261, 245, in part)

Provision of Revenue Act of 1921 abating the deduction (4 percent

of mean reserves) allowed from taxable income of life insurance companies in general by the amount of interest on their tax-exempts, and

so according no relative advantage to the owners of the tax-exempt

securities, held to destroy a guaranteed exemption.

National Life Ins. Co. v. United States, 277 U.S. 508 (1928).

Concurring: McReynolds, Van Devanter, Sutherland, Butler, Sanford, Taft, C.J.

Dissenting: Brandeis, Holmes, Stone

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2307
54. Act of June 10, 1922 (42 Stat. 634)

A second attempt to amend §§ 24 and 256 of the Judicial Code,

relating to jurisdiction of district courts, by saving “to claimants for

compensation for injuries to or death of persons other than the master or members of the crew of a vessel, their rights and remedies under the workmen’s compensation law of any State . . . ” held invalid

on authority of Knickerbocker Ice Co. v. Stewart.

Washington v. Dawson & Co., 264 U.S. 219 (1924).

Concurring: McReynolds, McKenna, Holmes, Van Devanter, Sutherland, Butler,

Sanford, Taft, C.J.

Dissenting: Brandeis

55. Act of June 2, 1924 (43 Stat. 313)

The gift tax provisions of the Revenue Act of 1924, applicable to

gifts made during the calendar year, were held invalid under the Fifth

Amendment insofar as they applied to gifts made before passage of

the act.

Untermyer v. Anderson, 276 U.S. 440 (1928).

Concurring: McReynolds, Sanford, Van Devanter, Sutherland, Butler, Taft, C.J.

Dissenting: Holmes, Brandeis, Stone

56. Act of February 26, 1926 (44 Stat. 70, § 302, in part)

Stipulation creating a conclusive presumption that gifts made within

two years prior to the death of the donor were made in contemplation

of death of donor and requiring the value thereof to be included in

computing the death transfer tax on decedent’s estate was held to effect an invalid deprivation of property without due process.

Heiner v. Donnan, 285 U.S. 312 (1932).

Concurring: Sutherland, Van Devanter, McReynolds, Butler, Roberts, Hughes, C.J.

Dissenting: Stone, Brandeis

57. Act of February 26, 1926 (44 Stat. 95, § 701)

Provision imposing a special excise tax of $1,000 on liquor dealers

operating in States where such business is illegal, was held a penalty,

without constitutional support following repeal of the Eighteenth Amendment.

United States v. Constantine, 296 U.S. 287 (1935).

Concurring: Roberts, Van Devanter, McReynolds, Sutherland, Butler, Hughes, C.J.

Dissenting: Cardozo, Brandeis, Stone

58. Act of March 20, 1933 (48 Stat. 11, § 17, in part)

Clause in the Economy Act of 1933 providing “. . . all laws granting or pertaining to yearly renewable term war risk insurance are hereby

repealed,” held invalid to abrogate an outstanding contract of insurance, which is a vested right protected by the Fifth Amendment.

2308 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
Lynch v. United States, 292 U.S. 571 (1934).

59. Act of May 12, 1933 (48 Stat. 31)

Agricultural Adjustment Act providing for processing taxes on agricultural commodities and benefit payments therefore to farmers, held

not within the taxing power under Article I, § 8, clause 1.

United States v. Butler, 297 U.S. 1 (1936).

Concurring: Roberts, Van Devanter, McReynolds, Sutherland, Butler, Hughes, C.J.

Dissenting: Stone, Brandeis, Cardozo

60. Joint Resolution of June 5, 1933 (48 Stat. 113, § 1)

Abrogation of gold clause in government obligations, held a repudiation of the pledge implicit in the power to borrow money (Article I,

§ 8, clause 2), and within the prohibition of the Fourteenth Amendment, against questioning the validity of the public debt. (The majority of the Court, however, held plaintiff not entitled to recover under

the circumstances.)

Perry v. United States, 294 U.S. 330 (1935).

Concurring: Hughes, C.J., Brandeis, Roberts, Cardozo

Concurring specially: Stone

Dissenting: McReynolds, Van Devanter, Sutherland, Butler

61. Act of June 16, 1933 (48 Stat. 195, the National Industrial Recovery Act)

(a) Title I, except § 9. Provisions relating to codes of fair competition, authorized to be approved by the President in his discretion “to

effectuate the policy” of the act, held invalid as a delegation of legislative power (Article I, § 1) and not within the commerce power (Article

I, § 8, clause 3).

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

Concurring: Hughes, C.J., Van Devanter, McReynolds, Brandeis, Sutherland,

Butler, Roberts

Concurring specially: Cardozo, Stone

(b) § 9(c). Clause of the oil regulation section authorizing the President “to prohibit the transportation in interstate . . . commerce of petroleum . . . produced or withdrawn from storage in excess of the amount

permitted . . . by any State law . . . ” and prescribing a penalty for

violation of orders issued thereunder, held invalid as a delegation of

legislative power.

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

Concurring: Hughes, C.J., Van Devanter, McReynolds, Brandeis, Sutherland,

Butler, Stone, Roberts

Dissenting: Cardozo

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2309
62. Act of June 16, 1933 (48 Stat. 307, § 13)

Temporary reduction of 15 percent in retired pay of judges, retired from service but subject to performance of judicial duties under

the Act of March 1, 1929 (45 Stat. 1422), was held a violation of the

guaranty of judges’ salaries in Article III, § 1.

Booth v. United States, 291 U.S. 339 (1934).

63. Act of April 27, 1934 (48 Stat. 646 § 6), amending § 5(i) of Home Owners’

Loan Act of 1933)

Provision for conversion of state building and loan associations into

federal associations, upon vote of 51 percent of the votes cast at a meeting of stockholders called to consider such action, held an encroachment on reserved powers of state.

Hopkins Savings Ass’n v. Cleary, 296 U.S. 315 (1935).

64. Act of May 24, 1934 (48 Stat. 798)

Provision for readjustment of municipal indebtedness, though “adequately related” to the bankruptcy power, was held invalid as an interference with state sovereignty.

Ashton v. Cameron County Dist., 298 U.S. 513 (1936).

Concurring: McReynolds, Van Devanter, Sutherland, Butler, Roberts

Dissenting: Cardozo, Brandeis, Stone, Hughes, C.J.

65. Act of June 19, 1934, ch. 652 (48 Stat. 1088, § 316, 18 U.S.C. § 1304)

Section 316 of the Communications Act of 1934, which prohibits

radio and television broadcasters from carrying advertisements for privately operated casino gambling regardless of the station’s or casino’s

location, violates the First Amendment’s protections for commercial speech

as applied to prohibit advertising of private casino gambling broadcast by stations located within a state where such gambling is illegal.

Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173 (1999).

Justices concurring: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg, Breyer,

Rehnquist, C.J.

Justices concurring specially: Thomas

66. Act of June 27, 1934 (48 Stat. 1283)

The Railroad Retirement Act, establishing a detailed compulsory

retirement system for employees of carriers subject to the Interstate

Commerce Act, held to be not a regulation of commerce within the meaning of Article I, § 8, clause 3, and to violate of the Due Process Clause

(Fifth Amendment).

Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330 (1935)

Concurring: Roberts, Van Devanter, McReynolds, Sutherland, Butler

Dissenting: Hughes, C.J., Brandeis, Stone, Cardozo

2310 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
67. Act of June 28, 1934 (48 Stat. 1289, ch. 869)

The Frazier-Lemke Act, adding subsection (s) to § 75 of the Bankruptcy Act, designed to preserve to mortgagors the ownership and enjoyment of their farm property and providing specifically, in paragraph 7, that a bankrupt left in possession has the option at any time

within 5 years of buying at the appraised value—subject meanwhile

to no monetary obligation other than payment of reasonable rental,

held a violation of property rights, under the Fifth Amendment.

Louisville Bank v. Radford, 295 U.S. 555 (1935).

68. Act of August 24, 1935 (48 Stat. 750).

Amendments of Agricultural Adjustment Act held not within the

taxing power, the amendments not having cured the defects of the original act held unconstitutional in United States v. Butler, 297 U.S. 1

(1936).

Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936).

69. Act of August 29, 1935, ch. 814 § 5(e) (49 Stat. 982, 27 U.S.C. § 205(e))

The prohibition in section 5(e)(2) of the Federal Alcohol Administration Act of 1935 on the display of alcohol content on beer labels is

inconsistent with the protections afforded to commercial speech by the

First Amendment. The government’s interest in curbing strength wars

among brewers is substantial, but, given the “overall irrationality” of

the regulatory scheme, the labeling prohibition does not directly and

materially advance that interest.

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

Justices concurring: Thomas, O’Connor, Scalia, Kennedy, Souter, Ginsburg, Breyer,

Rehnquist, C.J.

Justice concurring specially: Stevens

70. Act of August 30, 1935 (49 Stat. 991)

Bituminous Coal Conservation Act of 1935, held to impose, not a

tax within Article I, § 8, but a penalty not sustained by the Commerce

Clause (Article I, § 8, clause 3).

Carter v. Carter Coal Co., 298 U.S. 238 (1936).

Concurring: Sutherland, Van Devanter, McReynolds, Butler, Roberts

Concurring specially: Hughes, C.J.

Concurring in part and dissenting in part: Cardozo, Brandeis, Stone

71. Act of February 15, 1938, ch. 29 (52 Stat. 30)

District of Columbia Code § 22–1115, prohibiting the display of any

sign within 500 feet of a foreign embassy if the sign tends to bring

the foreign government into “public odium” or “public disrepute,” violates the First Amendment.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2311
Boos v. Barry, 485 U.S. 312 (1988).

Justices concurring: O’Connor, Brennan, Marshall, Stevens, Scalia

Justices dissenting: Rehnquist, C.J., White, Blackmun

72. Act of June 25, 1938 (52 Stat. 1040)

Federal Food, Drug, and Cosmetic Act of 1938, § 301(f), prohibiting the refusal to permit entry or inspection of premises by federal

officers held void for vagueness and to violate the Due Process Clause

of the Fifth Amendment.

United States v. Cardiff, 344 U.S. 174 (1952).

Concurring: Douglas, Black, Reed, Frankfurter, Jackson, Clark, Minton,

Vinson, C.J.

Dissenting: Burton

73. Act of June 30, 1938 (52 Stat. 1251)

Federal Firearms Act, § 2(f), establishing a presumption of guilt

based on a prior conviction and present possession of a firearm, held

to violate the test of due process under the Fifth Amendment.

Tot v. United States, 319 U.S. 463 (1943).

Concurring: Roberts, Reed, Frankfurter, Jackson, Rutledge, Stone, C.J.

Concurring specially: Black, Douglas

74. Act of August 10, 1939 (§ 201(d), 53 Stat. 1362, as amended, 42 U.S.C.

§ 402(g))

Provision of Social Security Act that grants survivors’ benefits based

on the earnings of a deceased husband and father covered by the Act

to his widow and to the couple’s children in her care but that grants

benefits based on the earnings of a covered deceased wife and mother

only to the minor children and not to the widower held violative of

the right to equal protection secured by the Fifth Amendment’s Due

Process Clause, because it unjustifiably discriminates against female

wage earners required to pay social security taxes by affording them

less protection for their survivors than is provided for male wage earners.

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

75. Act of October 14, 1940 (54 Stat. 1169 § 401(g)); as amended by Act of

January 20, 1944 (58 Stat. 4, § 1)

Provision of Aliens and Nationality Code (8 U.S.C. § 1481(a)(8)),

derived from the Nationality Act of 1940, as amended, that citizenship shall be lost upon conviction by court martial and dishonorable

discharge for deserting the armed services in time of war, held invalid

as imposing a cruel and unusual punishment barred by the Eighth

Amendment and not authorized by the war powers conferred by Article I, § 8, clauses 11 to 14.

2312 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
Trop v. Dulles, 356 U.S. 86 (1958).

Concurring: Warren, C.J., Whittaker

Concurring specially: Black, Douglas, Brennan

Dissenting: Frankfurter, Burton, Clark, Harlan

76. Act of November 15, 1943 (57 Stat. 450)

Urgent Deficiency Appropriation Act of 1943, § 304, providing that

no salary should be paid to certain named federal employees out of

moneys appropriated, held to violate Article I, § 9, clause 3, forbidding

enactment of bill of attainder or ex post facto law.

United States v. Lovett, 328 U.S. 303 (1946).

Concurring: Black, Douglas, Murphy, Rutledge, Burton, Stone, C.J.

Concurring specially: Frankfurter, Reed

77. Act of September 27, 1944 (58 Stat. 746, § 401(J), and Act of June 27,

1952 (66 Stat. 163, 267–268, § 349(a)(10))

§ 401(J) of Immigration and Nationality Act of 1940, added in 1944,

and § 49(a)(10) of the Immigration and Nationality Act of 1952 depriving one of citizenship, without the procedural safeguards guaranteed

by the Fifth and Sixth Amendments, for the offense of leaving or remaining outside the country, in time of war or national emergency, to

evade military service held invalid.

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

Concurring: Goldberg, Black, Douglas, Warren, C.J.

Concurring specially: Brennan

Dissenting: Harlan, Clark, Stewart, White

78. Act of July 31, 1946 (ch. 707, § 7, 60 Stat. 719)

District court decision holding invalid under First and Fifth Amendments statute prohibiting parades or assemblages on United States Capitol grounds is summarily affirmed.

Chief of Capitol Police v. Jeanette Rankin Brigade, 409 U.S. 972 (1972).

79. Act of June 25, 1948 (62 Stat. 760)

Provision of Lindberg Kidnaping Act that imposed for the death

penalty only if recommended by the jury held unconstitutional because it penalized the assertion of a defendant’s Sixth Amendment right

to jury trial.

United States v. Jackson, 390 U.S. 570 (1968).

Concurring: Stewart, Douglas, Harlan, Brennan, Fortas, Warren, C.J.

Dissenting: White, Black

80. Act of August 18, 1949 (63 Stat. 617, 40 U.S.C. § 13k)

Provision, insofar as it applies to the public sidewalks surrounding the Supreme Court building, which bars the display of any flag,

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2313
banner, or device designed to bring into public notice any party, organization, or movement, held to violate the free speech clause of the

First Amendment.

United States v. Grace, 461 U.S. 171 (1983).

Concurring: White, Brennan, Blackmun, Powell, Rehnquist, O’Connor, Burger, C.J.

Concurring in part and dissenting in part: Marshall, Stevens

81. Act of May 5, 1950 (64 Stat. 107)

Article 3(a) of the Uniform Code of Military Justice, subjecting civilian ex-servicemen to court martial for crime committed while in military service, held to violate Article III, § 2, and the Fifth and Sixth

Amendments.

Toth v. Quarles, 350 U.S. 11 (1955).

Concurring: Black, Frankfurter, Douglas, Clark, Harlan, Warren, C.J.

Dissenting: Reed, Burton, Minton

82. Act of May 5, 1950 (64 Stat. 107)

Insofar as Article 2(11) of the Uniform Code of Military Justice

subjects civilian dependents accompanying members of the armed forces

overseas in time of peace to trial, in capital cases, by court martial, it

violates Article III, § 2, and the Fifth and Sixth Amendments.

Reid v. Covert, 354 U.S. 1 (1957).

Concurring: Black, Douglas, Warren, C.J.

Concurring specifically: Frankfurter, Harlan

Dissenting: Clark, Burton

Insofar as the aforementioned provision is invoked in time of peace

for the trial of noncapital offenses committed on land bases overseas

by employees of the armed forces who have not been inducted or who

have not voluntarily enlisted therein, it violates the Sixth Amendment.

McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).

Concurring: Clark, Black, Douglas, Brennan, Warren, C.J.

Dissenting: Harlan, Frankfurter

Concurring in Part and dissenting in Part: Whittaker, Stewart

Insofar as the aforementioned provision is invoked in time of peace

for the trial of noncapital offenses committed by civilian dependents

accompanying members of the armed forces overseas, it violates Article III, § 2, and the Fifth and Sixth Amendments.

Kinsella v. United States, 361 U.S. 234 (1960).

Concurring: Clark, Black, Douglas, Brennan, Warren, C.J.

Dissenting: Harlan, Frankfurter

Concurring in part and dissenting in part: Whittaker, Stewart

Insofar as the aforementioned provision is invoked in time of peace

for the trial of a capital offense committed by a civilian employee of

2314 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
the armed forces overseas, it violates Article III, § 2, and the Fifth and

Sixth Amendments.

Grisham v. Hagan, 361 U.S. 278 (1960).

Concurring: Clark, Black, Douglas, Brennan, Warren, C.J.

Dissenting: Harlan, Frankfurter

Concurring in part and dissenting in part: Whittaker, Stewart

83. Act of August 16, 1950 (64 Stat. 451, as amended)

Statutory scheme authorizing the Postmaster General to close the

mails to distributors of obscene materials held unconstitutional in the

absence of procedural provisions to assure prompt judicial determination that protected materials were not being restrained.

Blount v. Rizzi, 400 U.S. 410 (1971).

84. Act of August 28, 1950 (§ 202(c)(1)(D), 64 Stat. 483, 42 U.S.C. § 402(c)(1)(C))

District court decision holding invalid as a violation of the equal

protection component of the Fifth Amendment’s due process clause a

Social Security provision entitling a husband to insurance benefits through

his wife’s benefits, provided he received at least one-half of his support from her at the time she became entitled, but requiring no such

showing of support for the wife to qualify for benefits through her husband, is summarily affirmed.

Califano v. Silbowitz, 430 U.S. 934 (1977).

85. Act of August 28, 1950 (§ 202(f)(1)(E), 64 Stat. 485, 42 U.S.C. § 402(f)(1)(D))

Social Security Act provision awarding survivor’s benefits based

on earnings of a deceased wife to widower only if he was receiving at

least half of his support from her at the time of her death, whereas

widow receives benefits regardless of dependency, held violative of equal

protection element of Fifth Amendment’s Due Process Clause because

of its impermissible sex classification.

Califano v. Goldfarb, 430 U.S. 199 (1977).

Concurring: Brennan, White, Marshall, Powell

Concurring specially: Stevens

Dissenting: Rehnquist, Stewart, Blackmun, Burger, C.J.

86. Act of September 23, 1950 (Title I, § 5, 64 Stat. 992)

Provision of Subversive Activities Control Act making it unlawful

for member of Communist front organization to work in a defense plant

held to be an overbroad infringement of the right of association protected by the First Amendment.

United States v. Robel, 389 U.S. 258 (1967).

Concurring: Warren, C.J., Black, Douglas, Stewart, Fortas

Concurring specially: Brennan

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2315
Dissenting: White, Harlan

87. Act of September 23, 1950 (64 Stat. 993, § 6)

Subversive Activities Control Act of 1950, § 6, providing that any

member of a Communist organization, which has registered or has been

ordered to register, commits a crime if he attempts to obtain or use a

passport, held to violate of due process under the Fifth Amendment.

Aptheker v. Secretary of State, 378 U.S. 500 (1964).

Concurring: Goldberg, Brennan, Stewart, Warren, C.J.

Concurring specially: Black, Douglas

Dissenting: Clark, Harlan, White

88. Act of September 28, 1950 (Title I, §§ 7, 8, 64 Stat. 993)

Provisions of Subversive Activities Control Act of 1950 requiring

in lieu of registration by the Communist Party registration by Party

members may not be applied to compel registration by, or to prosecute

for refusal to register, alleged members who have asserted their privilege against self-incrimination, inasmuch as registration would expose

such persons to criminal prosecution under other laws.

Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965).

89. Act of October 30, 1951 (§ 5(f)(ii), 65 Stat. 683, 45 U.S.C. § 231a(c)(3)(ii))

Provision of Railroad Retirement Act similar to section voided in

Califano v. Goldfarb (no. 85, supra).

Railroad Retirement Bd. v. Kalina, 431 U.S. 909 (1977).

90. Act of June 27, 1952 (Title III, 349, 66 Stat. 267)

Provision of Immigration and Nationality Act of 1952 providing

for revocation of United States citizenship of one who votes in a foreign election held unconstitutional under § 1 of the Fourteenth Amendment.

Afroyim v. Rusk, 387 U.S. 253 (1967).

Concurring: Black, Douglas, Brennan, Fortas, Warren, C.J.

Dissenting: Harlan, Clark, Stewart, White

91. Act of June 27, 1952 (66 Stat. 163, 269, § 352(a)(1))

§ 352(a)(1) of the Immigration and Nationality Act of 1952, depriving a naturalized person of citizenship for “having a continuous residence for three years” in state of his birth or prior nationality, held

violative of the Due Process Clause of the Fifth Amendment.

Schneider v. Rusk, 377 U.S. 163 (1964).

Concurring: Douglas, Black, Stewart, Goldberg, Warren, C.J.

Dissenting: Clark, Harlan, White

2316 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
92. Act of June 27, 1952 (ch. 477, § 244(e)(2), 66 Stat. 214, 8 U.S.C. § 1254

(c)(2))

Provision of the immigration law that permits either house of Congress to veto the decision of the Attorney General to suspend the deportation of certain aliens violates the bicameralism and presentation

requirements of lawmaking imposed upon Congress by Article I, §§ 1

and 7.

INS v. Chadha, 462 U.S. 919 (1983).

Justices concurring: Burger, C.J., Brennan, Marshall, Blackmun, Stevens

Justice concurring specially: Powell

Justices dissenting: Rehnquist, White

93. Act of August 16, 1954 (68A Stat. 525, Int. Rev. Code of 1954, §§ 4401–

4423)

Provisions of tax laws requiring gamblers to pay occupational and

excise taxes may not be used over an assertion of one’s privilege against

self-incrimination either to compel extensive reporting of activities, leaving the registrant subject to prosecution under the laws of all the states

with the possible exception of Nevada, or to prosecute for failure to

register and report, because the scheme abridged the Fifth Amendment privilege.

Marchetti v. United States, 390 U.S. 39 (1968), and Grosso v. United States,

390 U.S. 62 (1968).

Concurring: Harlan, Black, Douglas, White, Fortas

Concurring specially: Brennan, Stewart

Dissenting: Warren, C.J.

94. Act of August 16, 1954 (68A Stat. 560, Marijuana Tax Act, §§ 4741, 4744,

4751, 4753)

Provisions of tax laws requiring possessors of marijuana to register and to pay a transfer tax may not be used over an assertion of the

privilege against self-incrimination to compel registration or to prosecute for failure to register.

Leary v. United States, 395 U.S. 6 (1969).

Concurring specially: Warren, C.J., Stewart

95. Act of August 16, 1954 (68A Stat. 728, Int. Rev. Code of 1954, §§ 5841,

5851)

Provisions of tax laws requiring the possessor of certain firearms,

which it is made illegal to receive or to possess, to register with the

Treasury Department may not be used over an assertion of the privilege against self-incrimination to prosecute one for failure to register

or for possession of an unregistered firearm, as the statutory scheme

abridges the Fifth Amendment privilege.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2317
Haynes v. United States, 390 U.S. 85 (1968).

Concurring: Harlan, Black, Douglas, Brennan, Stewart, White, Fortas

Dissenting: Warren, C.J.

96. Act of August 16, 1954 (68A Stat. 867, Int. Rev. Code of 1954, § 7302)

Provision of tax laws providing for forfeiture of property used in

violating internal revenue laws may not be constitutionally used in face

of invocation of privilege against self-incrimination to condemn money

in possession of gambler who had failed to comply with the registration and reporting scheme held void in Marchetti v. United States, 390

U.S. 39 (1968).

United States v. United States Coin & Currency, 401 U.S. 715 (1971).

Concurring: Harlan, Black, Douglas, Brennan, Marshall

Dissenting: White, Stewart, Blackmun, Burger, C.J.

97. Act of August 16, 1954 (ch. 736, 68A Stat. 521, 26 U.S.C. § 4371(1))

A federal tax on insurance premiums paid to foreign insurers not

subject to the federal income tax violates the Export Clause, Art. I,

§ 9, cl. 5, as applied to casualty insurance for losses incurred during

the shipment of goods from locations within the United States to purchasers abroad.

United States v. IBM Corp., 517 U.S. 843 (1996).

Justices concurring: Thomas, O’Connor, Scalia, Souter, Breyer, and, Rehnquist, C.J.

Justices dissenting: Kennedy, Ginsburg

98. Act of July 18, 1956 (§ 106, Stat. 570)

Provision of Narcotic Drugs Import and Export Act creating a presumption that possessor of marijuana knew of its illegal importation

into the United States held, in absence of showing that all marijuana

in United States was of foreign origin and that domestic users could

know that their marijuana was more likely than not of foreign origin,

unconstitutional under the Due Process Clause of the Fifth Amendment.

Leary v. United States, 395 U.S. 6 (1969).

Concurring specially: Black

99. Act of August 10, 1956 (70A Stat. 65, Uniform Code of Military Justice,

Articles 80, 130, 134)

Servicemen may not be charged under the Act and tried in military courts because of the commission of non-service connected crimes

committed off-post and off-duty which are subject to civilian court jurisdiction where the guarantees of the Bill of Rights are applicable.

O’Callahan v. Parker, 395 U.S. 258 (1969), overruled in Solorio v. United States,

483 U.S. 435 (1987).

Concurring: Douglas, Black, Brennan, Fortas, Marshall, Warren, C.J.

Dissenting: Harlan, Stewart, White

2318 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
100. Act of August 10, 1956 (70A Stat. 35, § 772(f))

Proviso of statute permitting the wearing of United States military apparel in theatrical productions only if the portrayal does not

tend to discredit the armed forces imposes an unconstitutional restraint upon First Amendment freedoms and precludes a prosecution

under 18 U.S.C. § 702 for unauthorized wearing of uniform in a street

skit disrespectful of the military.

Schacht v. United States, 398 U.S. 58 (1970).

101. Act of September 2, 1958 (§ 5601(b)(1), 72 Stat. 1399)

Provision of Internal Revenue Code creating a presumption that

one’s presence at the site of an unregistered still shall be sufficient for

conviction under a statute punishing possession, custody, or control of

an unregistered still unless defendant otherwise explained his presence at the site to the jury held unconstitutional because the presumption is not a legitimate, rational, or reasonable inference that defendant was engaged in one of the specialized functions proscribed by the

statute.

United States v. Romano, 382 U.S. 136 (1965).

102. Act of September 2, 1958 (Pub. L. 85–921, § 1, 72 Stat. 1771, 18 U.S.C.

§ 504(1))

Exemptions from ban on photographic reproduction of currency “for

philatelic, numismatic, educational, historical, or newsworthy purposes” violates the First Amendment because it discriminates on the

basis of the content of a publication.

Regan v. Time, Inc., 468 U.S. 641 (1984).

Justices concurring: White, Brennan, Blackmun, Marshall, Powell, Rehnquist,

O’Connor, Burger, C.J.

Justice dissenting: Stevens

103. Act of September 2, 1958 (§ 1(25)(B), 72 Stat. 1446), and Act of September 7, 1962 (§ 401, 76 Stat. 469)

Federal statutes providing that spouses of female members of the

Armed Forces must be dependent in fact in order to qualify for certain dependent’s benefits, whereas spouses of male members are statutorily deemed dependent and automatically qualified for allowances,

whatever their actual status, held an invalid sex classification under

the equal protection principles of the Fifth Amendment’s Due Process

Clause.

Frontiero v. Richardson, 411 U.S. 677 (1973).

Concurring: Brennan, Douglas, White, Marshall

Concurring specially: Powell, Blackmun, Burger, C.J., Stewart

Dissenting: Rehnquist

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2319
104. Act of September 14, 1959 (§ 504, 73 Stat. 536)

Provision of Labor-Management Reporting and Disclosure Act of

1959 making it a crime for a member of the Communist Party to serve

as an officer or, with the exception of clerical or custodial positions, as

an employee of a labor union held to be a bill of attainder and unconstitutional.

United States v. Brown, 381 U.S. 437 (1965).

Concurring: Warren, C.J., Black, Douglas, Brennan, Goldberg

Dissenting: White, Clark, Harlan, Stewart

105. Act of October 11, 1962 (§ 305, 76 Stat. 840)

Provision of Postal Services and Federal Employees Salary Act of

1962 authorizing Post Office Department to detain material determined to be “communist political propaganda” and to forward it to the

addressee only if he requested it after notification by the Department,

the material to be destroyed otherwise, held to impose on the addressee an affirmative obligation that abridged First Amendment rights.

Lamont v. Postmaster General, 381 U.S. 301 (1965).

106. Act of October 15, 1962 (76 Stat. 914).

Provision of District of Columbia laws requiring that a person to

be eligible to receive welfare assistance must have resided in the District for at least one year impermissibly classified persons on the basis of an assertion of the right to travel interstate and therefore held

to violate the Due Process Clause of the Fifth Amendment.

Shapiro v. Thompson, 394 U.S. 618 (1969).

Concurring: Brennan, Douglas, Stewart, White, Fortas, Marshall

Dissenting: Warren, C.J., Black, Harlan

107. Act of December 16, 1963 (77 Stat. 378, 20 U.S.C. § 754)

Provision of Higher Education Facilities Act of 1963 which in effect removed restriction against religious use of facilities constructed

with federal funds after 20 years held to violate the establishment clause

of the First Amendment inasmuch as the property will still be of considerable value at the end of the period and removal of the restriction

would constitute a substantial governmental contribution to religion.

Tilton v. Richardson, 403 U.S. 672 (1971).

108. Act of July 30, 1965 (Pub. L. 89–97, § 121, 79 Stat. 351, 42 U.S.C. § 1396c)

Spending Clause does not support authority in the Medicaid Act

for the Secretary of Health and Human Services to terminate all future Medicaid payments to a state whose Medicaid plan does not comply with new coverage mandated by the Affordable Care Act.. Though

Congress may use its power under the Clause to secure state compli2320 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
ance with federal objectives, Spending Clause legislation is much in

the nature of a contract, and authority to withhold a significant source

of a state’s budget (over 10% for some states) for failure to provide

services to signicantly broadened classes of recipients under an independent regulatory regime is improperly coercive. Medicaid coverage

mandated under the Affordable Care Act cannot fairly be characterized as a “modification” to the program the states signed on to, but

rather amounts to a fundamental shift in Medicaid’s purpose from caring for the neediest to being a key element of a comprehensive, universal health plan.

National Federation of Independent Business v. Sebelius, 567 U.S. ___, No. 11–

393, slip op. (2012).

Concurring: Roberts, C.J., Breyer, Kagan

Concurring (by implication): Scalia, Kennedy, Thomas, Alito

Dissenting in part: Ginsburg, Sotomayor

109. Act of July 30, 1965 (§ 339, 79 Stat. 409)

Section of Social Security Act qualifying certain illegitimate children for disability insurance benefits by presuming dependence but disqualifying other illegitimate children, regardless of dependency, if the

disabled wage earner parent did not contribute to the child’s support

before the onset of the disability or if the child did not live with the

parent before the onset of disability, held to deny latter class of children equal protection as guaranteed by the Due Process Clause of the

Fifth Amendment.

Jiminez v. Weinberger, 417 U.S. 628 (1974).

Concurring: Burger, C.J., Douglas, Brennan, Stewart, White, Marshall, Blackmun,

Powell

Dissenting: Rehnquist

110. Act of August 6, 1965 (Pub. L. 89–110, § 4(b), 79 Stat. 438, 42 U.S.C.

§ 1973(b))

Section 4 of the Voting Rights Act of 1965, which provides the formula for determining the states or electoral districts that are required to submit electoral changes to the Department of Justice or a

federal court for preclearance approval under section 5 of the Act, exceeds Congress’s enforcement power under the Fifteenth Amendment

by violating the “fundamental principle of equal sovereignty” among

states without sufficient justification.

Shelby Cty. v. Holder, 570 U.S. ___, No. 12–96, slip op. (2013).

Justices concurring: Roberts, C.J., Scalia, Kennedy, Thomas, Alito

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2321
111. Act of September 3, 1966 (§ 102(b), 80 Stat. 831), and Act of April 8,

1974 (§§ 6(a)(1) amending § 3(d) of Act, 6(a)(2) amending 3 (e)(2)(C), 6(a)(5)

amending § 3(s)(5), and 6(a)(6) amending § 3(x))

Those sections of the Fair Labor Standards Act extending wage

and hour coverage to the employees of state and local governments

held invalid because Congress lacks the authority under the Commerce Clause to regulate employee activities in areas of traditional governmental functions of the states.

National League of Cities v. Usery, 426 U.S. 833 (1976) (subsequently overruled).

Concurring: Rehnquist, Stewart, Blackmun, Powell, Burger, C.J.

Dissenting: Brennan, White, Marshall, Stevens

112. Act of November 7, 1967 (Pub. L. 90–129, § 201(8), 81 Stat. 368), as

amended by Act of August 13, 1981 (Pub. L. 97–35, § 1229, 95 Stat. 730,

47 U.S.C. § 399)

Communications Act provision banning noncommercial educational stations receiving grants from the Corporation for Public Broadcasting from engaging in editorializing violates the First Amendment.

FCC v. League of Women Voters, 468 U.S. 364 (1984).

Justices concurring: Brennan, Marshall, Blackmun, Powell, O’Connor

Justices dissenting: White, Rehnquist, Stevens, Burger, C.J.

113. Act of January 2, 1968 (§ 163(a)(2), 81 Stat. 872)

District court decisions holding unconstitutional, under Fifth Amendment’s Due Process Clause, a section of Social Security Act that reduced, perhaps to zero, benefits coming to illegitimate children upon

death of parent in order to satisfy the maximum payment due the wife

and legitimate children, are summarily affirmed.

Richardson v. Davis, 409 U.S. 1069 (1972).

114. Act of January 2, 1968 (§ 203, 81 Stat. 882)

Provision of Social Security Act extending benefits to families whose

dependent children have been deprived of parental support because of

the unemployment of the father but not giving benefits when the mother

becomes unemployed held to impermissibly classify on the basis of sex

and violate the Fifth Amendment’s Due Process Clause.

Califano v. Westcott, 443 U.S. 76 (1979).

115. Act of June 19, 1968 (Pub. L. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C.

§ 3501)

A section of the Omnibus Crime Control and Safe Streets Act of

1968 purporting to reinstate the voluntariness principle that had governed the constitutionality of custodial interrogations prior to the Court’s

2322 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
decision in Miranda v. Arizona, 384 U.S. 436 (1966), is an invalid attempt by Congress to redefine a constitutional protection defined by

the Court. The warnings to suspects required by Miranda are

Constitution-based rules. Although the Miranda Court invited a legislative rule that would be “at least as effective” in protecting a suspect’s right to remain silent, section 3501 is not an adequate substitute.

Dickerson v. United States, 530 U.S. 428 (2000).

Justices concurring: Rehnquist, C.J., Stevens, O’Connor, Kennedy, Souter, Ginsburg

Justices dissenting: Scalia, Thomas

116. Act of June 19, 1968 (Pub. L. No. 90–351, § 802, 82 Stat. 213, 18 U.S.C.

§ 2511(c), as amended by the Act of October 21, 1986 (Pub. L. No. 99–

508, § 101(c)(1)(A)), 100 Stat. 1851))

A federal prohibition on disclosure of the contents of an illegally

intercepted electronic communication violates the First Amendment as

applied to a talk show host and a community activist who had played

no part in the illegal interception, and who had lawfully obtained tapes

of the illegally intercepted cellular phone conversation. The subject matter of the disclosed conversation, involving a threat of violence in a

labor dispute, was “a matter of public concern.” Although the disclosure prohibition well serves the government’s “important” interest in

protecting private communication, in this case “privacy concerns give

way when balanced against the interest in publishing matters of public importance.”

Bartnicki v. Vopper, 532 U.S. 514 (2001).

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg, Breyer

Justices dissenting: Rehnquist, C.J., Scalia, Thomas

117. Act of June 22, 1970 (ch. III, 84 Stat. 318)

Provision of Voting Rights Act Amendments of 1970 that set a minimum voting age qualification of 18 in state and local elections held to

be unconstitutional because beyond the powers of Congress to legislate.

Oregon v. Mitchell, 400 U.S. 112 (1970).

Concurring: Harlan, Stewart, Blackmun, Burger, C.J.

Concurring specially: Black

Dissenting: Douglas, Brennan, White, Marshall

118. Act of December 29, 1970 (§ 8(a), 84 Stat. 1598, 29 U.S.C. § 637(a))

Provision of Occupational Safety and Health Act authorizing inspections of covered work places in industry without warrants held to

violate Fourth Amendment.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2323
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).

Concurring: White, Stewart, Marshall, Powell, Burger, C.J.

Dissenting: Stevens, Blackmun, Rehnquist

119. Act of January 11, 1971, (§ 2, 84 Stat. 2048)

Provision of Food Stamp Act disqualifying from participation in

program any household containing an individual unrelated by birth,

marriage, or adoption to any other member of the household violates

the Due Process Clause of the Fifth Amendment.

Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

Concurring: Brennan, Douglas, Stewart, White, Marshall, Blackmun, Powell

Dissenting: Rehnquist, Burger, C.J.

120. Act of January 11, 1971 (§ 4, 84 Stat. 2049)

Provision of Food Stamp Act disqualifying from participation in

program any household containing a person 18 years or older who had

been claimed as a dependent child for income tax purposes in the present or preceding tax year by a taxpayer not a member of the household violates the Due Process Clause of the Fifth Amendment.

Department of Agriculture v. Murry, 413 U.S. 508 (1973).

Concurring: Douglas, Brennan, Stewart, White, Marshall

Dissenting: Blackmun, Rehnquist, Powell, Burger, C.J.

121. Act of December 10, 1971 (Pub. L. 92–178, § 801, 85 Stat. 570, 26 U.S.C

§ 9012(f))

Provision of Presidential Election Campaign Fund Act limiting to

$1,000 the amount that independent committees may expend to further the election of a presidential candidate financing his campaign

with public funds is an impermissible limitation of freedom of speech

and association protected by the First Amendment.

FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985).

Justices concurring: Rehnquist, Brennan, Blackmun, Powell, O’Connor, Stevens,

Burger, C.J.

Justices dissenting: White, Marshall

122. Federal Election Campaign Act of February 7, 1972 (86 Stat. 3, as amended

by the Federal Campaign Act Amendments of 1974 (88 Stat. 1263), adding or amending 18 U.S.C. §§ 608(a), 608(e), and 2 U.S.C. § 437c)

Provisions of election law that forbid a candidate or the members

of his immediate family from expending personal funds in excess of

specified amounts, that limit to $1,000 the independent expenditures

of any person relative to an identified candidate, and that forbid expenditures by candidates for federal office in excess of specified amounts

violate the First Amendment speech guarantees; provisions of the law

creating a commission to oversee enforcement of the Act are an in2324 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
valid infringement of constitutional separation of powers in that they

devolve responsibilities upon a commission four of whose six members

are appointed by Congress and all six of whom are confirmed by the

House of Representatives as well as by the Senate, not in compliance

with the appointments clause.

Buckley v. Valeo, 424 U.S. 1 (1976).

Concurring: Brennan, Stewart, Blackmun, Powell, Rehnquist, Burger, C.J.

Dissenting (expenditure provisions only): White

Dissenting (candidate’s personal funds only): Marshall

123. Act of February 7, 1972, Federal Election Campaign Act, (Pub. L. 92–

225, Title III, § 316, as added Pub. L. 94–283, Title I, § 112(2), 90 Stat.

490, 2 U.S.C. § 441b)

Federal law prohibiting corporations from using their general treasury funds to make independent expenditures for an “electioneering

communication” or for speech expressly advocating the election or defeat of a candidate is invalidated. Disclaimers indicating who is responsible for political advertising and requiring the disclosure of campaign

information to the FEC are upheld.

Citizens United v. FEC, 558 U.S. ___, No. 08–205, slip op. (2010)

Justices concurring: Kennedy, Roberts, C.J., Scalia, Alito, Thomas

Justices dissenting: Stevens, Ginsburg, Breyer, Sotomayor

124. Act of April 8, 1974 (Pub. L. 93–259, §§ 6(a)(6), 6(d)(1), 29 U.S.C. §§ 203(x),

216(b))

Fair Labor Standards Amendments of 1974 subjecting nonconsenting states to suits for damages brought by employees in state

courts violates the principle of sovereign immunity implicit in the constitutional scheme. Congress lacks power under Article I to subject nonconsenting states to suits for damages in state courts.

Alden v. Maine, 527 U.S. 706 (1999).

Justices concurring: Kennedy, O’Connor, Scalia, Thomas, Rehnquist, C.J.

Justices dissenting: Souter, Stevens, Ginsburg, Breyer

125. Act of April 8, 1974 (Pub. L. No. 93–259, §§ 6(d)(1), 28(a)(2), 88 Stat.

61, 74; 29 U.S.C. §§ 216(b), 630(b))

The Fair Labor Standards Act Amendments of 1974, amending the

Age Discrimination in Employment Act to subject states to damages

actions in federal courts, exceeds congressional power under section 5

of the Fourteenth Amendment. Age is not a suspect classification under the Equal Protection Clause, and the ADEA is “so out of proportion to a remedial or preventive object that it cannot be understood as

responsive to, or designed to prevent, unconstitutional behavior.”

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2325
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).

Justices concurring: O’Connor, Scalia, Kennedy, Thomas, Rehnquist, C.J.

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

126. Act of May 11, 1976 (Pub. L. 94–283, § 112(2), 90 Stat. 489; 2 U.S.C.

§ 441a(d)(3))

The Party Expenditure Provision of the Federal Election Campaign Act, which limits expenditures by a political party “in connection with the general election campaign of a [congressional] candidate,” violates the First Amendment when applied to expenditures that

a political party makes independently, without coordination with the

candidate.

Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996).

Justices concurring: Breyer, O’Connor, Souter

Justices concurring in part and dissenting in part: Kennedy, Scalia, Thomas,

Rehnquist, C.J.

Justices dissenting: Stevens, Ginsburg

127. Act of May 11, 1976 ( Pub. L. 92–225, § 316, 90 Stat. 490, 2 U.S.C. § 441b)

Provision of Federal Election Campaign Act requiring that independent corporate campaign expenditures be financed by voluntary contributions to a separate segregated fund violates the First Amendment as applied to a corporation organized to promote political ideas,

having no stockholders, and not serving as a front for a business corporation or union.

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986).

Justices concurring: Brennan, Marshall, Powell, Scalia

Justice concurring specially: O’Connor

Justices dissenting: Rehnquist, C.J., White, Blackmun, Stevens

128. Act of October 1, 1976 (title II, 90 Stat. 1446); Act of October 12, 1979

(101(c), 93 Stat. 657))

Provisions of appropriations laws rolling back automatic pay increases for federal officers and employees is unconstitutional as to Article III judges because, the increases having gone into effect, they violate the Security of Compensation Clause of Article III, § 1.

United States v. Will, 449 U.S. 200 (1980).

129. Act of October 19, 1976 (Pub. L. 94–553, § 101(c), 17 U.S.C. § 504(c))

Section 504(c) of the Copyright Act, which authorizes a copyright

owner to recover statutory damages, in lieu of actual damages, “in a

sum of not less than $500 or more than $20,000 as the court considers just,” does not grant the right to a jury trial on the amount of

statutory damages. The Seventh Amendment, however, requires a jury

determination of the amount of statutory damages.

2326 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998).

130. Act of November 6, 1978 (§ 241(a), 92 Stat. 2668, 28 U.S.C. § 1471)

Assignment to judges who do not have tenure and guarantee of

compensation protections afforded Article III judges of jurisdiction over

all proceedings arising under or in the bankruptcy act and over all

cases relating to proceedings under the bankruptcy act is invalid, inasmuch as judges without Article III protection may not receive at least

some of this jurisdiction.

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

Concurring: Brennan, Marshall, Blackmun, Stevens

Concurring specially: Rehnquist, O’Connor

Dissenting: White, Powell, Burger, C.J.

131. Act of November 9, 1978 (Pub. L. 95–621, § 202(c)(1), 92 Stat. 3372, 15

U.S.C. § 3342(c)(1))

Decision of Court of Appeals holding unconstitutional provision giving either House of Congress power to veto rules of Federal Energy

Regulatory Commission on certain natural gas pricing matters is summarily affirmed on the authority of INS v. Chadha .

Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).

132. Act of May 28, 1980 (Pub. L. 96–252, § 21(a), 94 Stat. 393, 15 U.S.C.

§ 57a–1(a))

Decision of Court of Appeals holding unconstitutional provision of

FTC Improvements Act giving Congress power by concurrent resolution to veto final rules of the FTC is summarily affirmed on the basis

of INS v. Chadha.

United States Senate v. FTC, 463 U.S. 1216 (1983).

133. Act of May 30, 1980 (94 Stat. 399, 45 U.S.C. §§ 1001 et seq.) as amended

by the Act of October 14, 1980 (94 Stat. 1959))

Acts of Congress applying to bankruptcy reorganization of one railroad and guaranteeing employee benefits is repugnant to the requirement of Article I, § 8, cl. 4, that bankruptcy legislation be “uniform.”

Railroad Labor Executives Ass’n v. Gibbons, 455 U.S. 457 (1982).

134. Act of January 12, 1983 (Pub. L. 97–459, § 207, 96 Stat. 2519, 25 U.S.C.

§ 2206)

Section of Indian Land Consolidation Act providing for escheat to

tribe of fractionated interests in land representing less than 2% of a

tract’s total acreage violates the Fifth Amendment’s Takings Clause

by completely abrogating rights of intestacy and devise.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2327
Hodel v. Irving, 481 U.S. 704 (1987).

Justices concurring: O’Connor, Brennan, Marshall, Blackmun, Powell, Scalia,

Rehnquist, C.J.

Justices concurring specially: Stevens, White

135. Act of April 20, 1983, 97 Stat. 69 (Pub. L. No. 98–21 § 101(b)(1) (amending 26 U.S.C. § 3121(b)(5))

The 1983 extension of the Social Security tax to then-sitting judges

violates the Compensation Clause of Article III, § 1. The Clause “does

not prevent Congress from imposing a non-discriminatory tax laid generally upon judges and other citizens . . . , but it does prohibit taxation that singles out judges for specially unfavorable treatment.” The

1983 Social Security law gave 96% of federal employees “total freedom” of choice about whether to participate in the system, and structured the system in such a way that “virtually all” of the remaining

4% of employees—except the judges—could opt to retain existing coverage. By requiring then-sitting judges to join the Social Security System and pay Social Security taxes, the 1983 law discriminated against

judges in violation of the Compensation Clause.

United States v. Hatter, 532 U.S. 557 (2001).

Justices concurring: Breyer, Kennedy, Souter, Ginsburg, Scalia, Thomas,

Rehnquist, C.J.

136. Act of July 10, 1984 (Pub. L. 98–353, Title I, § 104(a), 98 Stat. 340; 28

U.S.C. § 157(b)(2)(C)

Because bankruptcy courts are Article I entities, Congress established a division between “core proceedings,” which could be heard and

determined by bankruptcy courts, subject to lenient review, and other

proceedings, which, though initially heard and decided by bankruptcy

courts, could be reviewed de novo in the district court at the behest of

any party, unless the parties had consented to bankruptcy-court jurisdiction in the same manner as core proceedings. Among these “core

proceedings” were counterclaims by the estate against persons filing

claims against the estate. The Court held that a counterclaim of tortious interference with a gift, although made during a bankruptcy proceeding, was a state common law claim that did not fall under any of

the public rights exceptions allowing for exercise of Article III jurisdiction.

Stern v. Marshall, 564 U.S. ___, No. 10–179, slip op. (2011).

Justices concurring: Roberts, C. J.,, Scalia, Kennedy, Thomas, Alito

Justices dissenting: Breyer, Ginsburg, Sotomayor, Kagan

137. Act of October 30, 1984, (Pub. L. 98–608, § 1(4), 98 Stat. 3173, 25 U.S.C.

§ 2206)

Section 207 of the Indian Land Consolidation Act, as amended in

1984, effects an unconstitutional taking of property without compensa2328 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
tion by restricting a property owner’s right to pass on property to his

heirs. The amended section, like an earlier version held unconstitutional in Hodel v. Irving (1987), provides that certain small interests

in Indian land will escheat to the tribe upon death of the owner. None

of the changes made in 1984 cures the constitutional defect.

Babbitt v. Youpee, 519 U.S. 234 (1997).

Justices concurring: Ginsburg, O’Connor, Scalia, Kennedy, Souter, Thomas, Breyer,

Rehnquist, C.J.

Justices dissenting: Stevens

138. Act of January 15, 1985, (Pub. L. 99–240, § 5(d)(2)(C), 99 Stat. 1842, 42

U.S.C. § 2021e(d)(2)(C))

“Take-title” incentives contained in the Low-Level Radioactive Waste

Policy Amendments Act of 1985, designed to encourage states to cooperate in the federal regulatory scheme, offend principles of federalism

embodied in the Tenth Amendment. These incentives, which require

that non-participating states take title to waste or become liable for

generators’ damages, cross the line distinguishing encouragement from

coercion. Congress may not simply commandeer the legislative and regulatory processes of the states, nor may it force a transfer from generators to state governments. A required choice between two unconstitutionally coercive regulatory techniques is also impermissible.

New York v. United States, 505 U.S. 144 (1992).

Justices concurring: O’Connor, Scalia, Kennedy, Souter, Thomas, Rehnquist, C.J.

Justices dissenting: White, Blackmun, Stevens

139. Act of December 12, 1985 (Pub. L. 99–177, § 251), 99 Stat. 1063, 2 U.S.C.

§ 901)

That portion of the Balanced Budget and Emergency Deficit Control Act that authorizes the Comptroller General to determine the amount

of spending reductions that must be accomplished each year to reach

congressional targets and that authorizes him to report a figure to the

President that the President must implement violates the constitutional separation of powers because the Comptroller General is subject to congressional control (removal) and cannot be given a role in

the execution of the laws.

Bowsher v. Synar, 478 U.S. 714 (1986).

Justices concurring: Burger, C.J., Brennan, Powell, Rehnquist, O’Connor

Justices concurring specially: Stevens, Marshall

Justices dissenting: White, Blackmun

140. Act of October 27, 1986 (Pub. L. 99–570, § 1366, 100 Stat. 3207–35, 18

U.S.C. § 981(a)(1))

Statute requiring full civil forfeiture of money transported out of

the United States without amounts in excess of $10,000 being reACTS OF CONGRESS HELD UNCONSTITUTIONAL 2329
ported violates the Excessive Fines Clause of the Eighth Amendment

when $357,144 was required to be forfeited.

United States v. Bajakajian, 524 U.S. 321 (1998).

Justices concurring: Thomas, Stevens, Souter, Ginsburg, Breyer

Justices dissenting: Kennedy, Rehnquist, C.J., O’Connor, Scalia

141. Act of October 27, 1986 (Pub. L. No. 99–570, § 1401, 100 Stat. 3207,

3207–39, 18 U.S.C. § 924(e)(2)(B)(ii))

Imposing an increased sentence under the residual clause of the

Armed Career Criminal Act violates the Due Process Clause of the Fifth

Amendment as being void for vagueness.

Johnson v. United States, 576 U.S. ___, No. 13–7120, slip op. (2015).

Justices concurring: Roberts, C.J., Scalia, Ginsburg, Breyer, Sotomayor, Kagan

Justices concurring in judgment only: Kennedy, Thomas

Justice dissenting: Alito

142. Act of October 30, 1986 (Pub. L. 99–591, title VI, § 6007(f)), 100 Stat.

3341, 49 U.S.C. App. § 2456(f))

The Metropolitan Washington Airports Act of 1986, which transferred operating control of two Washington, D.C., area airports from

the Federal Government to a regional airports authority, violates separation of powers principles by conditioning that transfer on the establishment of a Board of Review, composed of Members of Congress and

having veto authority over actions of the airports authority’s board of

directors.

Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991)

Justices concurring: Stevens, Blackmun, O’Connor, Scalia, Kennedy, Souter

Justices dissenting: White, Marshall, Rehnquist, C.J.

143. Act of November 17, 1986 (Pub. L. 99–662, title IV, § 1402(a), 26 U.S.C.

§§ 4461, 4462)

The Harbor Maintenance Tax (HMT) violates the Export Clause

of the Constitution, Art. I, § 9, cl. 5, to the extent that the tax applies

to goods loaded for export at United States ports. The HMT, which

requires shippers to pay a uniform charge of 0.125% of cargo value on

commercial cargo shipped through the Nation’s ports, is an impermissible tax rather than a permissible user fee. The value of export cargo

does not correspond reliably with federal harbor services used by exporters, and the tax does not, therefore, represent compensation for

services rendered.

2330 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
United States v. United States Shoe Corp., 523 U.S. 360 (1998).

144. Act of April 28, 1988 (Pub. L. 100–297 § 6101, 102 Stat. 424, 47 U.S.C.

§ 223(b)(1))

Amendment to Communications Act of 1934 imposing an outright

ban on “indecent” but not obscene commercial telephone messages (“diala-porn”) violates the First Amendment, because it has not been shown

to be narrowly tailored to further the governmental interest in protecting minors from hearing such messages.

Sable Communications v. FCC, 492 U.S. 115 (1989).

145. Act of October 17, 1988 (Pub. L. 100–497, § 11(d)(7), 102 Stat. 2472, 25

U.S.C. § 2710(d)(7))

A provision of the Indian Gaming Regulatory Act authorizing an

Indian tribe to sue a State in federal court to compel performance of a

duty to negotiate in good faith toward the formation of a compact violates the Eleventh Amendment. In exercise of its powers under Article

I, Congress may not abrogate States’ Eleventh Amendment immunity

from suit in federal court. Pennsylvania v. Union Gas Co., 491 U.S. 1

(1989), is overruled.

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

Justices concurring: Rehnquist, C.J., O’Connor, Scalia, Kennedy, Thomas

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

146. Act of October 28, 1989 (Pub. L. 101–131, 103 Stat. 777, 18 U.S.C. § 700)

The Flag Protection Act of 1989, criminalizing burning and certain other forms of destruction of the United States flag, violates the

First Amendment. Most of the prohibited acts involve disrespectful treatment of the flag, and evidence a purpose to suppress expression out of

concern for its likely communicative impact.

United States v. Eichman, 496 U.S. 310 (1990).

Justices concurring: Brennan, Marshall, Blackmun, Scalia, Kennedy

Justices dissenting: Stevens, White, O’Connor, Rehnquist, C.J.

147. Act of November 30, 1989 (Pub. L. 101–194, § 601, 103 Stat. 1760, 5

U.S.C. app. § 501)

Section 501(b) of the Ethics in Government Act, as amended in

1989 to prohibit Members of Congress and federal employees from accepting honoraria, violates the First Amendment as applied to Executive Branch employees below grade GS–16. The ban is limited to expressive activity and does not include other outside income, and the

“speculative benefits” of the ban do not justify its “crudely crafted burden” on expression.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2331
United States v. National Treasury Employees Union, 513 U.S. 454 (1995).

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer

Justice concurring in part and dissenting in part: O’Connor

Justices dissenting: Rehnquist, C.J., Scalia, Thomas

148. Act of July 26, 1990 (Pub. L. No. 101–336, Title I, 104 Stat. 327, 42

U.S.C. §§ 12112–12117)

Title I of the Americans with Disabilities Act of 1990 (ADA), exceeds congressional power to enforce the Fourteenth Amendment, and

violates the Eleventh Amendment, by subjecting states to suits brought

by state employees in federal courts to collect money damages for the

state’s failure to make reasonable accommodations for qualified individuals with disabilities. Rational basis review applies, and consequently states “are not required by the Fourteenth Amendment to make

special accommodations for the disabled, so long as their actions towards such individuals are rational.” The legislative record of the ADA

fails to show that Congress identified a pattern of irrational state employment discrimination against the disabled. Moreover, even if a pattern of discrimination by states had been found, the ADA’s remedies

would run afoul of the “congruence and proportionality” limitation on

Congress’s exercise of enforcement power.

Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

Justices concurring: Rehnquist, C.J., O’Connor, Scalia, Kennedy, Thomas

Justices dissenting: Breyer, Stevens, Souter, Ginsburg

149. Act of July 26, 1990 (Pub. L. No. 101–336, Title I, 104 Stat. 327, 42

U.S.C. §§ 12111, 12203)

Title I of the Americans with Disabilities Act of 1990 (ADA) may

not be applied against a religious organization for the discharge of a

“called” teacher at a parochial school. The Establishment and Free Exercise Clauses bar ADA actions by or on behalf of ministers against

their churches, and an ordained teacher may fall within the “ministerial exception” even though she teaches many secular subjects and her

discharge may not have been doctrinally based.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. ___, No. 10–553, slip op. (2012).

150. Act of November 28, 1990 (Pub. L. No. 101–624, Title XIX, Subtitle B,

104 Stat. 3854, 7 U.S.C. §§ 6101 et seq.)

The Mushroom Promotion, Research, and Consumer Information

Act violates the First Amendment by imposing mandatory assessments on mushroom handlers for the purpose of funding generic advertising to promote mushroom sales. The mushroom program differs “in

a most fundamental respect” from the compelled assessment on fruit

growers upheld in Glickman v. Wileman Bros. & Elliott, Inc. (1997).

2332 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
There the mandated assessments were “ancillary to a more comprehensive program restricting marketing autonomy,” while here there is “no

broader regulatory system in place.” The mushroom program contains

no marketing orders that regulate how mushrooms may be produced

and sold, no exemption from the antitrust laws, and nothing else that

forces mushroom producers to associate as a group to make cooperative decisions. But for the assessment for advertising, the mushroom

growing business is unregulated.

United States v. United Foods, Inc., 533 U.S. 405 (2001).

Justices concurring: Kennedy, Stevens, Scalia, Souter, Thomas, Rehnquist, C.J.

Justices dissenting: Breyer, Ginsburg, O’Connor

151. Act of November 29, 1990 (Pub. L. 101–647, § 1702, 104 Stat. 4844, 18

U.S.C. § 922q)

The Gun Free School Zones Act of 1990, which makes it a criminal offense to knowingly possess a firearm within a school zone, exceeds congressional power under the Commerce Clause. It is “a criminal statute that by its terms has nothing to do with ‘commerce’ or any

sort of economic enterprise.” Possession of a gun at or near a school

“is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”

United States v. Lopez, 514 U.S. 549 (1995).

Justices concurring: Rehnquist, C.J., O’Connor, Scalia, Kennedy, Thomas

Justices dissenting: Stevens, Souter, Breyer, Ginsburg

152. Act of December 19, 1991 (Pub. L. 102–242 § 476, 105 Stat. 2387, 15

U.S.C. § 78aa–1)

Section 27A(b) of the Securities Exchange Act of 1934, as added

in 1991, requiring reinstatement of any section 10(b) actions that were

dismissed as time barred subsequent to a 1991 Supreme Court decision, violates the Constitution’s separation of powers to the extent that

it requires federal courts to reopen final judgments in private civil actions. The provision violates a fundamental principle of Article III that

the federal judicial power comprehends the power to render dispositive judgments.

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

Justices concurring: Scalia, O’Connor, Kennedy, Souter, Thomas, Rehnquist, C.J.

Justice concurring specially: Breyer

Justices dissenting: Stevens, Ginsburg

153. Act of October 5, 1992 (Pub. L. 102–385, §§ 10(b) and 10(c), 106 Stat.

1487, 1503; 47 U.S.C. § 532(j) and § 531 note, respectively)

Section 10(b) of the Cable Television Consumer Protection and Competition Act of 1992, which requires cable operators to segregate and

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2333
block indecent programming on leased access channels if they do not

prohibit it, violates the First Amendment. Section 10(c) of the Act, which

permits a cable operator to prevent transmission of “sexually explicit”

programming on public access channels, also violates the First Amendment.

Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996).

Justices concurring: Breyer, Stevens, O’Connor (§ 10(b) only), Kennedy, Souter,

Ginsburg

Justices dissenting: Thomas, Scalia, O’Connor (§ 10(c) only), Rehnquist, C.J.

154. Act of October 24, 1992, Title XIX, 106 Stat. 3037 (Pub. L. 102–486, 26

U.S.C. §§ 9701–9722)

The Coal Industry Retiree Health Benefit Act of 1992 is unconstitutional as applied to the petitioner Eastern Enterprises. Pursuant to

the Act, the Social Security Commissioner imposed liability on Eastern for funding health care benefits of retirees from the coal industry

who had worked for Eastern prior to 1966. Eastern had transferred

its coal-related business to a subsidiary in 1965. Four Justices viewed

the imposition of liability on Eastern as a violation of the Takings Clause,

and one Justice viewed it as a violation of substantive due process.

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).

Justices concurring: O’Connor, Scalia, Thomas, Rehnquist, C.J.

Justices concurring specially: Kennedy

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

155. Act of October 27, 1992 (Pub. L. 102–542, 15 U.S.C. § 1122)

The Trademark Remedy Clarification Act, which provided that states

shall not be immune from suit under the Trademark Act of 1946 (Lanham

Act) “under the eleventh amendment . . . or under any other doctrine

of sovereign immunity,” did not validly abrogate state sovereign immunity. Congress lacks power to do so in exercise of Article I powers, and

the TRCA cannot be justified as an exercise of power under section 5

of the Fourteenth Amendment. The right to be free from a business

competitor’s false advertising is not a “property right” protected by the

Due Process Clause.

College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527

U.S. 666 (1999).

Justices concurring: Scalia, O’Connor, Kennedy, Thomas, Rehnquist, C.J.

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

156. Act of October 28, 1992 (Pub. L. 102–560, 106 Stat. 4230, 29 U.S.C.

§ 296)

The Patent and Plant Variety Remedy Clarification Act, which

amended the patent laws to expressly abrogate states’ sovereign immunity from patent infringement suits is invalid. Congress lacks power

2334 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
to abrogate state immunity in exercise of Article I powers, and the Patent Remedy Clarification Act cannot be justified as an exercise of power

under section 5 of the Fourteenth Amendment. Section 5 power is remedial, yet the legislative record reveals no identified pattern of patent infringement by states and the Act’s provisions are “out of proportion to a supposed remedial or preventive object.”

Florida Prepaid Postsecondary Edu. Expense Bd. v. College Savings Bank, 527

U.S. 627 (1999).

Justices concurring: Rehnquist, C.J., O’Connor, Scalia, Kennedy, Thomas

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

157. Act of February 5, 1993 (Pub. L. 103–3, 107 Stat. 9, 29 U.S.C. § 2612)

Congress may not require a state employer to grant a state employee unpaid self-care leave under the Family and Medical Leave Act.

Congress cannot abrogate state immunity under section 5 of the Fourteenth Amendment to enforce self-care leave requirements because those

requirements are intended primarily to ameliorate discrimination based

on personal illness and are not a congruent and proportional remedy

for gender discrimination.

Coleman v. Court of Appeals of Maryland, 566 U.S. ___, No. 10–1016, slip op.

(2012).

Justices concurring: Kennedy, Roberts, C.J., Thomas, Alito

Justices concurring specially: Scalia

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

158. Act of November 16, 1993 (Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C.

§§ 2000bb to 2000bb–4)

The Religious Freedom Restoration Act, which directed use of the

compelling interest test to determine the validity of laws of general

applicability that substantially burden the free exercise of religion, exceeds congressional power under section 5 of the Fourteenth Amendment. Congress’s power under Section 5 to “enforce” the Fourteenth

Amendment by “appropriate legislation” does not extend to defining

the substance of the Amendment’s restrictions. This RFRA appears to

do. RFRA “is so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed

to prevent, unconstitutional behavior.”

City of Boerne v. Flores, 521 U.S. 507 (1997).

Justices concurring: Kennedy, Stevens, Thomas, Ginsburg, Rehnquist, C.J.

Justices dissenting: O’Connor, Breyer, Souter

159. Act of November 30, 1993 (Pub. L. 103–159, 107 Stat. 1536)

Interim provisions of the Brady Handgun Violence Prevention Act

that require state and local law enforcement officers to conduct background checks on prospective handgun purchasers are inconsistent with

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2335
the Constitution’s allocation of power between Federal and state governments. In New York v. United States, 505 U.S. 144 (1992), the Court

held that Congress may not compel states to enact or enforce a federal regulatory program, and “Congress cannot circumvent that prohibition by conscripting the State’s officers directly.”

Printz v. United States, 521 U.S. 898 (1997).

Justices concurring: Scalia, O’Connor, Kennedy, Thomas, Rehnquist, C.J.

Justices dissenting: Stevens, Souter, Ginsburg, Breyer

160. Act of September 13, 1994 (Pub. L. 103–322, § 40302, 108 Stat. 1941,

42 U.S.C. § 13981)

A provision of the Violence Against Women Act that creates a federal civil remedy for victims of gender-motivated violence exceeds congressional power under the Commerce Clause and under section 5 of

the Fourteenth Amendment. The commerce power does not authorize

Congress to regulate “noneconomic violent criminal conduct based solely

on that conduct’s aggregate effect on interstate commerce.” The Fourteenth Amendment prohibits only state action, and affords no protection against purely private conduct. Section 13981, however, is not aimed

at the conduct of state officials, but is aimed at private conduct.

United States v. Morrison, 529 U.S. 598 (2000).

Justices concurring: Rehnquist, C.J., O’Connor, Scalia, Kennedy, Thomas

Justices dissenting: Souter, Breyer, Stevens, Ginsburg

161. Act of February 8, 1996, 110 Stat. 56, 133–34 (Pub. L. 104–104, title V,

§ 502, 47 U.S.C. §§ 223(a), 223(d))

Two provisions of the Communications Decency Act of 1996—one

that prohibits knowing transmission on the Internet of obscene or indecent messages to any recipient under 18 years of age, and the other

that prohibits the knowing sending or displaying of patently offensive

messages in a manner that is available to anyone under 18 years of

age—violate the First Amendment.

Reno v. ACLU, 521 U.S. 844 (1997).

Justices concurring: Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer

Justices concurring in part and dissenting in part: O’Connor, Rehnquist, C.J.

162. Act of February 8, 1996 (Pub. L. 104–104, § 505, 110 Stat. 136, 47 U.S.C.

§ 561)

Section 505 of the Telecommunications Act of 1996, which required cable TV operators that offer channels primarily devoted to sexually oriented programming to prevent signal bleed either by fully scrambling those channels or by limiting their transmission to designated

hours when children are less likely to be watching, violates the First

Amendment. The provision is content-based, and therefore can only

2336 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
be upheld if narrowly tailored to promote a compelling governmental

interest. The measure is not narrowly tailored, as the government did

not establish that the less restrictive alternative found in section 504

of the Act—that of scrambling a channel at a subscriber’s request—

would be ineffective.

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

Justices concurring: Kennedy, Stevens, Souter, Thomas, Ginsburg

Justices dissenting: Scalia, Breyer, O’Connor, Scalia, Rehnquist, C.J.

163. Act of April 9, 1996, 110 Stat. 1200 (Pub. L. 104–130, 2 U.S.C. §§ 691 et

seq.)

The Line Item Veto Act, which gives the President the authority

to “cancel in whole” three types of provisions that have been signed

into law, violates the Presentment Clause of Article I, section 7. In

effect, the law grants to the President “the unilateral power to change

the text of duly enacted statutes.” This Line Item Veto Act authority

differs in important respects from the President’s constitutional authority to “return” (veto) legislation: the statutory cancellation occurs after rather than before a bill becomes law, and can apply to a part of a

bill as well as the entire bill.

Clinton v. City of New York, 524 U.S. 417 (1998).

Justices concurring: Stevens, Kennedy, Souter, Thomas, Ginsburg, Rehnquist, C.J.

Justices dissenting: Scalia, O’Connor, Breyer

164. Act of April 26, 1996 (Pub. L. No. 104–134 § 504(a)(16), 110 Stat. 1321–

55)

A restriction in the appropriations act for the Legal Services Corporation that prohibits funding for any organization that participates

in litigation that challenges a federal or state welfare law constitutes

viewpoint discrimination in violation of the First Amendment. Moreover, the restrictions on LSC advocacy “distort [the] usual functioning” of the judiciary, and are “inconsistent with accepted separation-ofpowers principles.” “An informed, independent judiciary presumes an

informed, independent bar,” yet the restriction “prohibits speech and

expression on which courts must depend for the proper exercise of judicial power.”

Legal Services Corp. v. Valazquez, 531 U.S. 533 (2001).

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer

Justices dissenting: Scalia, O’Connor, Thomas, Rehnquist, C.J.

165. Act of September 21, 1996 (Pub. L. No. 104–199, § 2(a), 110 Stat. 2419,

1 U.S.C. § 7)

Section 3 of the Defense of Marriage Act (DOMA), which provides

that—for purposes of any federal act, ruling, regulation, or interpretaACTS OF CONGRESS HELD UNCONSTITUTIONAL 2337
tion by an administrative agency—the word “spouse” is defined as a

person of the opposite sex who is a husband or a wife, was “motivated

by improper animus or purpose” to disparage and injure those whom

a state, by its marriage laws, “sought to protect in personhood and

dignity,” amounting to a deprivation of the equal liberty of persons that

is protected by the Fifth Amendment.

United States v. Windsor, 570 U.S. ___, No. 12–307, slip op. (2013).

Justices concurring: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito

166. Act of September 30, 1996 (Pub. L. No. 104–208, § 121, 110 Stat. 3009–

26, 18 U.S.C. §§ 2252, 2256)

Two sections of the Child Pornography Prevention Act of 1996 that

extend the federal prohibition against child pornography to sexually

explicit images that appear to depict minors but that were produced

without using any real child violate the First Amendment. These provisions cover any visual image that “appears to be” of a minor engaging in sexually explicit conduct, and any image promoted or presented

in a way that “conveys the impression” that it depicts a minor engaging in sexually explicit conduct. The rationale for excepting child pornography from First Amendment coverage is to protect children who

are abused and exploited in the production process, yet the Act’s prohibitions extend to “virtual” pornography that does not involve a child

in the production process.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer

Justice concurring specially: Thomas

Justices dissenting: Chief Justice Rehnquist, Scalia

167. Act of November 21, 1997 (Pub. L. 105–115, § 127, 111 Stat. 2328, 21

U.S.C. § 353a)

Section 127 of the Food and Drug Administration Modernization

Act of 1997, which adds section 503A of the Federal Food, Drug, and

Cosmetic Act to exempt “compounded drugs” from the regular FDA approval process if providers comply with several restrictions, including

that they refrain from advertising or promoting the compounded drugs,

violates the First Amendment. The advertising restriction does not meet

the Central Hudson test for acceptable governmental regulation of commercial speech. The government failed to demonstrate that the advertising restriction is “not more extensive than is necessary” to serve its

interest in preventing the drug compounding exemption from becoming a loophole by which large-scale drug manufacturing can avoid the

FDA drug approval process. There are several non-speech means by

which the government might achieve its objective.

2338 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
Thompson v. Western States Medical Center, 535 U.S. 357 (2002).

Justices concurring: O’Connor, Scalia, Kennedy, Souter, Breyer

Justices dissenting: Breyer, Stevens, Ginsburg, Rehnquist, C.J.

168. Act of December 9, 1999 (Pub. L. 106–152, § 1(a), 113 Stat. 1732, 18

U.S.C. § 48)

Federal law which criminalized the commercial creation, sale, or

possession of depictions of animal cruelty struck down. Despite an exemption for depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” the law was found

to reach protected First Amendment speech.

United States v. Stevens, 559 U.S. ___, No. 08–769, slip op (2010)

Justices concurring: Roberts, C.J., Stevens, Scalia, Kennedy, Thomas, Ginsburg,

Breyer, Sotomayor

Justices dissenting: Alito

169. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002

(Pub. L. 107–155, §§ 213, 318; 2 U.S.C. §§ 315(d)(4), 441k)

Section 213 of the Bipartisan Campaign Reform Act of 2002 (BCRA),

which amended the Federal Election Campaign Act of 1971 (FECA) to

require political parties to choose between coordinated and independent expenditures during the post-nomination, pre-election period, is

unconstitutional because it burdens parties’ right to make unlimited

independent expenditures. Section 318 of BCRA, which amended the

FECA to prohibit persons “17 years old or younger” from contributing

to candidates or political parties, is invalid as violating the First Amendment rights of minors.

McConnell v. FEC, 540 U.S. 93 (2003).

170. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002

(Pub. L. 107–155, § 203; 2 U.S.C. § 441b(b)(2))

In McConnell v. FEC, 540 U.S. 93 (2003), the Court held that § 203

was not facially overbroad, and, in Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U.S. 410 (2006), it held that it had not purported to resolve future as-applied challenges. Now it holds that § 203

is unconstitutional as applied to issue ads that mention a candidate

for federal office, when such ads are not the “functional equivalent” of

express advocacy for or against the candidate.

Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007).

Justices concurring: Roberts, C.J., Alito, Scalia, Kennedy, Thomas

Justices dissenting: Souter, Stevens, Ginsberg, Breyer

171. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002

(Pub. L. 107–155, §§ 319(a) and (b); 2 U.S.C. § 441a–1(a) and (b))

A subsection of BCRA providing that, if a “self-financing” candidate for the House of Representatives spends more than a specified

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2339
amount, then his opponent may accept more contributions than otherwise permitted, violates the First Amendment. A subsection with disclosure requirements designed to implement the asymmetrical contribution limits also violates the First Amendment.

Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008).

Justices concurring: Alito, Roberts, C.J., Scalia, Kennedy, Thomas

Justices dissenting (except as to standing and mootness): Stevens, Souter, Ginsberg,

Breyer

172. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002

(Pub. L. 107–155, § 307(b), 2 U.S.C. § 441a(a)(3))

Aggregate limits on the amount of money individuals are allowed

to contribute to candidates, political action committees, national party

committees, and state or local party committees violate the First Amendment by restricting participation in the political process without furthering the government’s interest in preventing quid pro quo corruption or the appearance thereof.

McCutcheon v. FEC, 572 U.S. ___, No. 12–536, slip op. (2014).

Justices concurring: Roberts, C.J., Scalia, Kennedy, Alito

Justice concurring in judgment only: Thomas

Justices dissenting: Ginsburg, Breyer, Sotomayor, Kagan

173. Act of July 30, 2002 (Pub. L. 107–204, Title I, §§ 101(e)(6), 107(d)(3),

116 Stat. 750; 15 U.S.C.S. §§ 7211(e)(6) and 7217(d)(3))

Two provisions of the Sarbanes-Oxley Act, providing that members of the Public Company Accounting Oversight Board could only be

removed by the Commissioners of the Securities and Exchange Commission “for good cause shown” and “in accordance with” specified procedures, violated the Constitution’s separation of powers. Because the

removal decision was vested in Commissioners who themselves were

protected from removal by the President absent a showing of “inefficiency, neglect of duty, or malfeasance in office,” the Court held that

the dual for-cause limitations on the removal of Board members withdrew from the President any decision on whether that good cause existed.

Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S.

___, No. 08–861, slip op. (2010).

Justices concurring: Roberts, C.J., Scalia, Thomas, Kennedy, Alito

Justices dissenting: Stevens, Breyer, Ginsburg, Sotomayor

174. Act of September 30, 2002 (Pub. L. No. 107–228, § 214(d), 116 Stat. 1350)

Section 214(d) of the Foreign Relations Authorization Act, FY2003—

which states that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen

born in the city of Jerusalem, the Secretary [of State] shall, upon the

2340 ACTS OF CONGRESS HELD UNCONSTITUTIONAL
request of the citizen or the citizen’s legal guardian, record the place

of birth as Israel”—is unconstitutional because it forces the Executive

to contradict a prior recognition decision made pursuant to the President’s exclusive power under Article II, Section 3, to recognize foreign

sovereigns.

Zivotofsky v. Kerry, 576 U.S. ___, No. 113–628, slip op. at 14 (2014).

Justices concurring: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan

Justice concurring in part, and dissenting in part: Thomas

Justices dissenting: Roberts, C.J., Scalia, Alito

175. Act of April 30, 2003 (Pub. L. 108–21, §§ 401(a)(1), 401(d)(2), 117 Stat.

667, 670; 18 U.S.C. §§ 3553(b)(1), 3742(e))

Two provisions of the Sentencing Reform Act, one that makes the

Guidelines mandatory and one that sets forth standards governing appeals of departures from the mandatory Guidelines, are invalidated.

The Sixth Amendment right to a jury trial limits sentence enhancements that courts may impose pursuant to the Guidelines.

United States v. Booker, 543 U.S. 220 (2005).

Justices concurring: Breyer, O’Connor, Kennedy, Ginsburg, Rehnquist, C.J.

Justices dissenting: Stevens, Souter, Scalia, Thomas

176. Act of April 30, 2003 (Pub. L. 108–21, § 401(e), 117 Stat. 671; 18 U.S.C.

§ 3742(g)(2))

In evaluating whether Congress has authorized a District Court

to consider post-conviction behavior as part of resentencing (after a

sentence has been appealed, vacated, and remanded), the Court holds

that a statutory limitation on the use of such information during resentencing to depart from the Sentencing Guidelines is no longer valid

after United States v. Booker.

Pepper v. United States, 562 U.S. ___, .No. 09–6822, slip op. (2011).

Justices concurring: Sotomayor, Roberts, C.J., Scalia, Kennedy, Ginsburg

Justices concurring in part and dissenting in part: Breyer, Alito

Justice dissenting: Thomas

177. Act of May 27, 2003 (Pub. L. 108–25, Title III, § 301(f), 117 Stat. 711,

734, 22 U.S.C. § 7631(f))

A condition on the provision of federal funds intended to combat

HIV/AIDS requiring a recipient to have a policy “explicitly opposing

prostitution and sex trafficking” violates First Amendment free speech

rights by improperly interfering with the recipient’s protected conduct

outside of the federal program.

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. ___, No. 12–10,

slip op. (2013).

Justices concurring: Roberts, C.J., Kennedy, Ginsburg, Breyer, Alito, Sotomayor

Justices dissenting: Scalia, Thomas

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2341
178. Act of December 30, 2005 (Pub. L. 109–148, § 1005(e)(1), 119 Stat. 2742;

28 U.S.C. § 2241(e)(1))

A provision of the Detainee Treatment Act eliminating federal habeas jurisdiction over alien detainees held at Guantanamo Bay, Cuba

is invalidated as a violation of the Suspension Clause [Art. I, § 9, clause

2]. As the detainees disputed their enemy status, their ability to dispute their status had been limited, and they were held in a location

under the de facto jurisdiction of the United States, the Suspension

Clause was in full effect regarding their detention.

Boumediene v. Bush, 553 U.S. 723 (2008).

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito

179. Act of December 20, 2006 (Pub. L. 109–437, § 3, 120 Stat. 3266, 18 U.S.C.

§ 704)

Stolen Valor Act, which penalizes any false claim of having been

awarded a military decoration or medal, is invalidated on First Amendment grounds by four Justices for failure to be shown to be actually

necessary to meet compelling governmental interests (strict scrutiny),

and by two additional Justices for failure to achieve legitimate objectives through less restrictive ways (intermediate scrutiny).

United States v. Alvarez, 567 U.S. ___, No. 11–210, slip op. (2012).

Justices concurring: Kennedy, Roberts, C.J., Ginsburg, Sotomayor

Justices concurring specially: Breyer, Kagan

Justice dissenting: Alito, Scalia, Thomas

2342 ACTS OF CONGRESS HELD UNCONSTITUTIONAL