2117

ACTS OF CONGRESS 

HELD UNCONSTITUTIONAL IN WHOLE OR 

IN PART BY THE 

SUPREME COURT OF THE UNITED STATES 

2119

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

IN WHOLE OR IN PART BY THE SUPREME 

COURT OF THE UNITED STATES 

1. Act of Sept. 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 Feb. 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 Mar. 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 Feb. 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. 

2120 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 Mar. 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 Mar. 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 (1865). (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 Jan. 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 

during 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). 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2121

Concurring: Field, Wayne, Grier, Nelson, Clifford. 

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

10. Act of Mar. 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 Mar. 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. 

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 

2122 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

failure to produce such documents, was held violative of the search 

and seizure provision 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 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, by reason 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 Mar. 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, 16 Stat. 141, 4). 

Provision penalizing ‘‘every person who prevents, hinders, controls, or intimidates another from exercising . . . the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment 

to the Constitution of the United States, by means of bribery . . .,’’ 

held not authorized by the Fifteenth Amendment. 

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

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

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2123

Dissenting: Harlan, Brown. 

19. Revised Statutes 5519 (Act of Apr. 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 Mar. 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 Mar. 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 

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). 

2124 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 Aug. 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). 

Jones v. Meehan, 175 U.S. 1 (1899). 

27. Act of Aug. 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], 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2125

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 Jan. 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. 

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. 

2126 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 Mar. 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. 

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 Feb. 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,’’ 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2127

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 Mar. 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 Feb. 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 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 Aug. 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). 

2128 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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

Concurring specially: Pitney, Brandeis, Clarke. 

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

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 Mar. 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 Sept. 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 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 Sept. 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. 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2129

46. Act of Oct. 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 Sept. 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 Feb. 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 compensation 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 Feb. 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 

2130 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 Feb. 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 Oct. 22, 1919 (41 Stat. 298, § 2), amending Act of Aug. 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 unreasonable 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. 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2131

52. Act of Aug. 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 Nov. 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. 

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). 

2132 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

Concurring: McReynolds, Sanford, Van Devanter, Sutherland, 

Butler, Taft, C.J. 

Dissenting: Holmes, Brandeis, Stone. 

56. Act of Feb. 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 Feb. 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 Mar. 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. 

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.) 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2133

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. 

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 Mar. 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 Apr. 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. 

2134 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 especially: 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, not a regulation of commerce within the meaning of Article I, § 8, clause 3, and violative of the due process clause 

(Fifth Amendment). 

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

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

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

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 Aug. 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 Aug. 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 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2135

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 Aug. 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 Feb. 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. 

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 as violative of 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. 

2136 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

74. Act of Aug. 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, since 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 Oct. 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. 

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 Nov. 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 Sept. 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). 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2137

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 Kidnapping Act which provided for the imposition of the death penalty only if recommended by the jury held 

unconstitutional inasmuch as 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 Aug. 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, banner, or device designed to bring into public notice any party, 

organization, or movement, held violative of 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 is violative of Article III, § 2, and the Fifth and Sixth 

Amendments.

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

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

2138 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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 enlised therein, it is violative of 

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 is 

violative of Article III, § 2, and the Fifth and Sixth Amendments. 

Kinsella v. United States ex rel. Singleton, 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 the armed forces overseas, it is violative of 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 Aug. 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 Aug. 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). 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2139

85. Act of Aug. 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 Sept. 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. 

Dissenting: White, Harlan. 

87. Act of Sept. 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 violative 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 Sept. 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 Oct. 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 

Goldfarb (no. 85, supra). 

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

2140 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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. 

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 Aug. 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. 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2141

94. Act of Aug. 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 Aug. 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 since the statutory 

scheme abridges the Fifth Amendment privilege. 

Haynes v. United States, 390 U.S. 85 (1968). 

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

Dissenting: Warren, C.J. 

96. Act of Aug. 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 Aug. 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 mariVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
2142 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

juana 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 Aug. 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. 

100. Act of Aug. 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 Sept. 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 Sept. 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. 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2143

Justice dissenting: Stevens. 

103. Act of Sept. 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.. 

104. Act of Sept. 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 Oct. 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 which amounted to an abridgment 

of First Amendment rights. 

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

106. Act of Oct. 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. 

2144 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

107. Act of Dec. 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 (§ 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. 

109. Act of Sept. 3, 1966 (§ 102(b), 80 Stat. 831), and Act of Apr. 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. 

110. Act of Nov. 7, 1967 (Pub. L. 90-129, § 201(8), 81 Stat. 368), as amended 

by Act of Aug. 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. 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2145

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

111. Act of Jan. 2, 1968 (§ 163(a)(2), 81 Stat. 872). 

District court decisions holding unconstitutional under Fifth 

Amendment’s due process clause 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). 

112. Act of Jan. 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). 

113. 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 decision in Miranda v. Arizona, 384 U.S. 486 (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. While 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, and 

Ginsburg.

Justices dissenting: Scalia, Thomas. 

114. 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 Oct. 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 ‘‘imVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00029 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
2146 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

portant’’ 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. 

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

Provision of Voting Rights Act Amendments of 1970 which 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. 

116. Act of Dec. 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. 

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978). 

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

Dissenting: Stevens, Blackmun, Rehnquist. 

117. Act of Jan. 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. 

118. Act of Jan. 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. 

119. Act of Dec. 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 furVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00030 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
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ther 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. 

120. Federal Election Campaign Act of Feb. 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 invalid 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. 

121. Act of Apr. 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 non-consenting 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 

non-consenting 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. 

122. Act of Apr. 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 

2148 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

proportion to a remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’’

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. 

123. 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,, and Rehnquist, C.J. 

Justices dissenting: Stevens, Ginsburg. 

124. 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. 

125. Act of Oct. 1, 1976 (title II, 90 Stat. 1446); Act of Oct. 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). 

126. Act of Oct. 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 statuVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00032 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
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tory damages. The Seventh Amendment, however, requires a jury determination of the amount of statutory damages. 

Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998). 

127. Act of Nov. 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 Const. 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. 

128. Act of Nov. 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).

129. 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). 

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

131. Act of Jan. 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. 

2150 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

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.. 

132. Act of Apr. 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.. 

133. Act of Oct. 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 compensation 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,and Rehnquist, C.J. 

Justices dissenting: Stevens. 

134. Act of Jan. 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 legisVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00034 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
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lative 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. 

135. Act of Dec. 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 which authorizes the Comptroller General to determine the 

amount of spending reductions which must be accomplished each year 

to reach congressional targets and which authorizes him to report a 

figure to the President which the President must implement violates 

the constitutional separation of powers inasmuch as 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. 

136. Act of Oct. 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. 

137. Act of Nov. 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 

2152 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

by exporters, and the tax does not, therefore, represent compensation 

for services rendered. 

United States v. United States Shoe Corp., 523 U.S. 360 (1998). 

138. Act of Apr. 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 messages violates the First Amendment, since it has not been shown to be narrowly tailored to further 

the governmental interest in protecting minors from hearing such 

messages.

Sable Communications of California v. FCC, 492 U.S. 115 (1989). 

139. Act of Oct. 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. 

140. Act of Oct. 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. 

141. Act of Nov. 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. 

United States v. National Treasury Employees Union, 513 U.S. 454 (1995). 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2153

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer. 

Justice concurring in part and dissenting in part: O’Connor. 

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

142. Act of July 26, 1990 (Pub. L. No. 101-336, Title I), 104 Stat. 330, 42 

U.S.C. §§ 12111-12117. 

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. 

143. Act of Nov. 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 Brothers & Elliott 

(1997). 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.. 

2154 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

144. Act of Nov. 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. 

145. Act of Dec. 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. 

146. Act of Oct. 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 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. 

147. Act of Oct. 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 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2155

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. 

148. Act of Oct. 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. 

149. Act of Oct. 28, 1992, 106 Stat. 4230, Pub. L. 102-560, 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 infringemenet suits is invalid. Congress lacks 

power 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. 

150. Act of Nov. 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, 

2156 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

exceeds congressional power under section 5 of the Fourteenth 

Amendment. Congress’ 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. 

151. Act of Nov. 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 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. 

152. Act of Sept. 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. 

153. Act of Feb. 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 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2157

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..

154. Act of Feb. 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 be upheld if narrowly tailored to promote a compelling governmental interest. The measure is not narrowly tailored, since 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.. 

155. Act of Apr. 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. 

156. Act of Apr. 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. MoreVerDate Aug<04>2004 12:53 Aug 23, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON063.SGM PRFM99 PsN: CON063
2158 ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

over, the restrictions on LSC advocacy ‘‘distort [the] usual functioning’’ of the judiciary, and are ‘‘inconsistent with accepted separation-of-powers 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.. 

157. Act of Sep. 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 children 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 children in the production process. 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). 

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, and Breyer.. 

Justice concurring specially: Thomas.. 

Justices dissenting: Chief Justice Rehnquist, and Scalia.. 

158. Act of Nov. 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.

Thompson v. Western States Medical Center, 535 U.S. 357 (2002). 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 2159

Justices concurring: O’Connor, Scalia, Kennedy, Souter, Breyer.. 

Justices dissenting: Breyer, Stevens, Ginsburg, and Chief Justice Rehnquist..