Source: Legislation declared unconstitutional. (2003). In D. R. Tarr, & A. O'Connor (Eds.), Congress A to Z. Washington: CQ Press. Retrieved August 22, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

Legislation Declared Unconstitional

The Supreme Court early in its history asserted the power to review laws passed by Congress and to invalidate any laws found to violate the Constitution. Over time the doctrine of judicial review has become an established part of the United States's system of separation of powers. It serves as a constant reminder to Congress that the laws it passes will be measured against the provisions of the Constitution and nullified if found in conflict.

While Congress has passed thousands of statutes over more than two centuries, the Court had exercised its power to rule laws or portions of laws unconstitutional only about 150 times by the early 2000s. The congressional statutes invalidated have included many relatively minor laws, but also such major enactments as the Missouri Compromise, a federal income tax, child labor laws, New Deal economic recovery acts, the post-Watergate campaign finance law, statutes to curb pornography on the Internet, efforts to allow victims of gender-motivated violence to sue their attackers in federal court for compensatory damages, amendments to a landmark age discrimination law, and the line-item veto.

The Court invalidated only two statutes before the end of the Civil War. But as Congress broadened the scope of federal regulation in the late nineteenth century, the number of federal laws declared unconstitutional increased. Dominated by economic conservatives, the Court often blocked laws Congress enacted to protect workers and consumers. The conflicts peaked from 1918 to 1936. The Court threw out twenty-nine laws during that period, including several statutes of President Franklin D. Roosevelt's New Deal program.

Roosevelt changed the Court's ideological composition during his second and third terms, appointing justices who supported broad federal powers in economic affairs while taking a more expansive view of civil liberties. In succeeding decades, the Court often used its power to strike down laws as infringements of individual freedoms, in particular freedom of speech. Under Chief Justice William H. Rehnquist, the Court in the 1990s continued to invoke the First Amendment to strike down some laws passed by Congress. At the same time, the Court also took a stricter view of congressional powers vis-a-vis the states, nullifying several laws on grounds they infringed states' rights.

Judicial Review

The Constitution makes no mention of judicial review, but the framers seem to have intended that the Supreme Court would have the power to determine whether acts of Congress conformed to its provisions. The Court first dealt with the question in 1803 in a rather minor political controversy over a presidential appointment. The dispute produced what many regard as the most important decision in the Supreme Court's history: Marbury v. Madison.

Democratic-Republican Thomas Jefferson defeated Federalist John Adams in his quest for reelection to the presidency in 1800. Before the Democratic-Republican took office, Adams nominated several Federalists to judicial posts created by legislation passed by the lame-duck Federalist Congress. The nominations were confirmed by the Senate and the commissions signed by Adams, but not all the commissions were delivered before Jefferson entered office. Jefferson promptly ordered that these commissions be withheld. William Marbury, who had been named justice of the peace for the District of Columbia, asked the Supreme Court to order Jefferson's secretary of state, James Madison, to deliver his commission. Marbury filed suit under the Judiciary Act of 1789, which empowered the Court to issue writs of mandamus compelling federal officials to perform their duties.

The Supreme Court, led by Chief Justice John Marshall, held that Marbury should have received his commission but that the Court lacked the power to order that the commission be delivered. The Court ruled that the provision of the Judiciary Act empowering the Court to issue such an order was unconstitutional because Congress had no power to enlarge the Court's original jurisdiction. In the course of his opinion, Marshall stated emphatically that it was “the province and duty of the judicial department to say what the law is.” The Court has repeated that assertion countless times since to justify its decisions to find laws passed by Congress contrary to the Constitution.

Major Decisions

The following paragraphs list some significant laws declared unconstitutional by the Supreme Court.

Missouri Compromise

Not until 1857—fifty-four years after Marbury—was a second act of Congress declared unconstitutional by the Supreme Court. In the infamous Dred Scott case (Scott v. Sandford), the Court held that the Missouri Compromise of 1820 was unconstitutional. This compromise—in addition to admitting Missouri to the Union as a slave state and Maine as a free state—had divided the remaining U.S. territory along the 36°30? north latitude line. Slavery was “forever prohibited” above the line, except for Missouri. The Court ruled in 1857 that Congress lacked the power to exclude slavery from any territory. The decision intensified the debate over slavery, which eventually exploded into the Civil War. The Dred Scott ruling was undone by the Thirteenth and Fourteenth Amendments, which outlawed slavery and extended equal protection under the law to all U.S. citizens.

Test Oath Law

The Court in 1867 declared invalid an 1865 law that required attorneys, as a condition for practicing in federal courts, to swear that they had never engaged in nor supported the southern rebellion against the Union. The Court's opinion in this and other cases indicated that it would not look favorably on other federal legislation of the Reconstruction era. To avoid this possibility, Congress removed from the Court's jurisdiction cases arising under certain of those laws. This was the only time in the Court's history that Congress specified a group of laws the Court could not review.

Legal Tender Acts

The Court in 1870 struck down the 1862 and 1863 acts of Congress that had made paper money legal tender in payment of debts incurred before the passage of the acts (Hepburn v. Griswold). The outcry from debtors and the potential economic repercussions from this decision were so great that within fifteen months the Court—with two new members—reconsidered and overturned its earlier decision (Knox v. Lee). Critics contended that the administration of President Ulysses S. Grant had packed the Court to win the reversal and thus establish paper money as a legal currency.

Civil Rights Act

In 1883 the Court struck down the Civil Rights Act of 1875, which barred discrimination in privately owned public accommodations, such as hotels, theaters, and railway cars. The decision was one in a series that weakened Congress's power to enforce the guarantees given to blacks by the Thirteenth and Fourteenth Amendments. Almost a century passed before Congress and the Court effectively overturned this series of rulings.

Federal Income Tax

The Court in 1895 struck down the first general peacetime income tax enacted by Congress. The decision (Pollock v. Farmers' Loan and Trust Co.) was bitterly attacked by Democrats in Congress and was reversed in 1913 by the Sixteenth Amendment.

“Yellow Dog” Contracts

The Supreme Court opposed the organized labor movement in its early years. In 1908 the Court invalidated a section of an 1898 statute that had made it unlawful for any railway employer to require as a condition of employment that employees not join a labor union—so-called yellow-dog contracts. Not until 1930 did the Court sanction a federal law guaranteeing collective bargaining rights for railway employees.

Child Labor Laws

The Court in 1918 struck down a two-year-old law that sought to end child labor. Congress responded in 1919 by passing a second child labor statute. When this law was struck down in 1922, Congress adopted a constitutional amendment to overturn the decisions. But the amendment failed to win ratification by a sufficient number of states before the Court itself in 1941 overruled its earlier decisions.

New Deal Laws

President Franklin Roosevelt's New Deal program provoked an unprecedented clash between the Court and the legislative and executive branches. At Roosevelt's instigation, Congress in the 1930s enacted a series of laws aimed at ending the Great Depression and restoring the nation's economic well-being. Of eight major statutes to come before the Court, only two were upheld. Laws that were struck down included the Agricultural Adjustment Act of 1933, the National Industrial Recovery Act of 1933, and the Bituminous Coal Conservation Act of 1935. The Court came under heavy fire for its decisions, and Roosevelt proposed a controversial plan to increase the size of the Court, presumably to ensure a majority sympathetic to the New Deal. Shortly after the plan was proposed, the Court defused the issue by upholding a series of revised New Deal laws.

Campaign Spending Limits

In Buckley v. Valeo the Supreme Court in 1976 overturned the spending limits imposed on congressional campaigns by the federal election law of 1974. The law had restricted House candidates from spending no more than $70,000 in a general election; Senate candidates from spending no more than $150,000. Both liberal and conservative plaintiffs in the case had argued that the law was unconstitutional in restricting the free expression of citizens and political candidates. Although the Court struck down the candidate spending limits, it upheld provisions of the law limiting the amounts that individuals and political committees could contribute to specific candidates, as well as the reporting and disclosure requirements.

Legislative Veto

In a 1983 decision the Court declared the legislative veto to be unconstitutional (Immigration and Naturalization Service v. Chadha). Not since the New Deal era had Congress felt so keenly the power of the Supreme Court to curtail its actions. By denying Congress the use of the legislative veto, a device it had employed in more than 200 laws since 1932, the Court seemed to alter the balance of power between Congress and the executive branch.


In 1986 the Court invalidated a key enforcement provision of the Balanced Budget and Emergency Deficit Control Act (Bowsher v. Synar). The Court ruled that the law violated the constitutional separation of powers by requiring that the comptroller general determine how much federal spending needed to be cut to meet certain deficit goals. Congress responded by passing a revised version of the so-called Gramm-Rudman-Hollings law that essentially put the power in the hands of the White House Office of Management and Budget.

Gun Control

In 1997 the Court threw out a major provision of a federal gun control law—called the Brady Act— requiring state or local law enforcement officials to conduct background checks on prospective gun purchasers (Printz v. United States). The Court said Congress had no power to require states to implement federal regulatory programs.

Internet Indecency

Also in 1997 the Court threw out a new federal law aimed at limiting access by minors to sexually oriented material on the Internet (Reno v. American Civil Liberties Union). The Court said that the Communications Decency Act violated the First Amendment by suppressing constitutionally protected speech for adults. In 2002, a divided court did not rule whether another law that attempted to restrict access to pornographic materials being sold on the Internet was constitutional, instead sending the case back to a circuit court for a rehearing on such questions as whether the statute was too broad or vague. The same year, justices agreed to hear a case in 2003 on whether a 2000 law that requires public libraries to obtain screening software for public computer terminals as a condition for receiving certain federal funds was constitutional.

Line-Item Veto

The Court in 1998 struck down a law giving the president the power to cancel individual spending items and certain tax benefits contained in laws passed by Congress (Clinton v. City of New York). The Court said that the line-item veto—a goal long sought by presidents of both parties—unconstitutionally gave the president the power to unilaterally change the text of duly enacted laws.

additional reading

Baum, Lawrence. The Supreme Court. 7th ed. Washington, D.C.: CQ Press, 2000.

Berger, Raoul. Congress v. the Supreme Court. Cambridge, Mass.: Harvard University Press, 1969.

Biskupic, Joan, and Elder Witt, eds. Guide to the U.S. Supreme Court. 3rd ed. Washington, D.C.: Congressional Quarterly, 1997.

Warren, Charles. The Supreme Court in United States History. 2 vols. Boston: Little, Brown, 1922, 1926. Rpt. 1987.


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