Source:Unconstitutional statutes. (2003). In K. Jost (Ed.), The Supreme Court A to Z. Washington: CQ Press. Retrieved August 22, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

Unconstitutional Statutes

The Supreme Court has declared at least 161 acts of Congress unconstitutional in whole or in part. The Court's power of judicial review, taken for granted today, is not explicitly established in the Constitution, but few scholars believe the omission means that the Framers intended to deny the Court this authority.

Supreme Court decisions striking down acts of Congress are among the Court's most important and controversial rulings. The Court used the power to blunt civil rights laws in the Reconstruction era, thwart social and economic legislation in the Progressive and New Deal eras, throw out some antisubversive laws during the cold war, and enforce the separation of powers among Congress, the president, and the judiciary. Under Chief Justice William H. Rehnquist, the Court in the 1990s began throwing out federal laws that it found to be infringements of states' sovereignty.

Alexander Hamilton anticipated the Court's power to invalidate acts of Congress during the debate over ratification of the Constitution. In No. 78 of The Federalist Papers, Hamilton reminded his readers that the Constitution limited legislative authority. Those limitations, he argued, “can be preserved in no other medium than through the medium of the courts of justice, whose duty it would be to declare all acts contrary to the manifest tenor of the Constitution void.”

Early Rulings

Chief Justice John Marshall relied heavily on Hamilton's reasoning in his landmark opinion in Marbury v. Madison (1803), striking down a provision of an act of Congress for the first time. Like Hamilton, he stressed the Constitution's role of limiting the power of the legislature and the courts' role in enforcing those limitations. In the event of a conflict between a law and the Constitution, Marshall said, the court was bound to decide the case by applying the Constitution rather than “any ordinary act of the legislature.” The ruling invalidated a minor provision of the Judiciary Act of 1789, but the principle it established was of historic significance.

The Court did not invalidate an act of Congress again until the so-called Dred Scott case—Scott v. Sandford (1857). With the nation bitterly divided over slavery, the Court ruled that Congress had acted unconstitutionally in providing, in the Missouri Compromise of 1820, that slavery would be prohibited in the northern part of the Louisiana Territory. The ruling also declared blacks forever disabled from attaining citizenship. After the Civil War broke out, the Union government ignored the ruling. Congress voted to abolish slavery in the territories in 1862, and President Abraham Lincoln's attorney general recognized free blacks born in the United States as U.S. citizens.

Chief Justice Charles Evans Hughes described the Dred Scott case and two other nineteenth-century decisions invalidating congressional enactments as “self-inflicted wounds” on the Court. The others on Hughes's list were the first of the Legal Tender Cases in 1870, barring use of paper money, and the 1895 decision overturning the federal income tax. All three decisions were later overturned. The Thirteenth and Fourteenth Amendments abolishing slavery and guaranteeing citizenship to blacks overturned Scott. The Supreme Court reversed itself on the paper money issue just one year later. And the Sixteenth Amendment, ratified in 1913, authorized Congress to levy a federal income tax.

Major Congressional Statutes Held Unconstitutional (Case, date, law or provision held unconstitutional)

Marbury v. Madison (1803) Judiciary Act of 1789 provision giving Supreme Court power to issue writs of mandamus in cases originating at the Court.

Scott v. Sandford (1857) Missouri Compromise provision barring slavery in northern part of Louisiana Territory; overturned by Fourteenth Amendment.

Ex parte Garland (1867) Test oath for former Confederate supporters.

Hepburn v. Griswold (1870) “Legal tender clauses” making paper money legal tender for all debts; overruled in 1871 (Knox v. Lee).

Civil Rights Cases (1883) 1875 civil rights act barring racial discrimination in public accommodations; five cases overturning Reconstruction-era civil rights provisions.

Pollock v. Farmers' Loan & Trust Co. (1895) Income tax provisions of the tariff act of 1894; overturned by Sixteenth Amendment.

The Employers' Liability Cases (1908) 1906 act imposing liability on railroads for injuries to employees.

Hammer v. Dagenhart (1918) Original child labor law barring products made with child labor from interstate commerce; overruled in 1941 (United States v. Darby Lumber Co.).

Newberry v. United States (1921) Federal Corrupt Practice Act of 1911 provision limiting spending by senatorial candidate in party primary; overruled in 1941 (United States v. Classic).

Bailey v. Drexel Furniture Co. (Child Labor Tax Cases) (1922) Child Labor Tax Act imposing 10 percent excise tax on goods manufactured with child labor; overruled in 1941 (United States v. Darby Lumber Co.).

Adkins v. Children's Hospital (1923) District of Columbia minimum wage law for women; overruled in 1937 (West Coast Hotel Co. v. Parrish).

Myers v. United States (1926) 1876 law requiring “the advice and consent of the Senate” for removal of postmasters.

Panama Refining Co. v. Ryan (1935) National Industrial Recovery Act's “hot oil” provision penalizing interstate transportation of petroleum in excess of state production controls.

Schechter Poultry Corp. v. United States (1935) National Industrial Recovery Act provision for industry-written codes of fair competition; most important of several rulings striking down New Deal economic recovery legislation.

United States v. Butler (1936) Agricultural Adjustment Act providing for processing taxes on agricultural commodities and benefit payments to farmers.

Carter v. Carter Coal Co. (1936) Bituminous Coal Conservation Act of 1935 regulating prices and labor relations in coal industry and levying tax on coal to finance regulation scheme.

Bolling v. Sharpe (1954) 1862 statute establishing segregated schools in the District of Columbia (companion case to Brown v. Board of Education of Topeka).

United States v. Brown (1965) Labor-Management Reporting and Disclosure Act of 1959 provision barring current or former communists from labor union office.

Shapiro v. Thompson (1969) District of Columbia law establishing one-year residency requirement for welfare benefits.

Oregon v. Mitchell (1970) Voting rights for eighteen-year-olds; overturned by Twenty-sixth Amendment.

Frontiero v. Richardson (1973) Gender-based benefits provision for members of armed forces; first of several sex discrimination rulings in benefits cases.

Buckley v. Valeo (1976) Federal Election Campaign Act of 1974 provisions limiting spending by political candidates and establishing Federal Election Commission with congressionally appointed members.

National League of Cities v. Usery (1976) Fair Labor Standards Act provisions extending wage and hour coverage to state and local government workers; overturned in 1985 (Garcia v. San Antonio Metropolitan Transit Authority).

Immigration and Naturalization Service v. Chadha (1983) Legislative veto provisions of Immigration and Nationality Act; ruling deemed to apply to similar provisions in as many as 200 statutes.

United States v. Eichman (1990) 1989 flag desecration statute.

United States v. Lopez (1995) Gun Free Schools Zone Act.

Printz v. United States (1997) Brady Act provision for background checks on prospective gun purchasers.

Reno v. American Civil Liberties Union (1997) Communications Decency Act.

Clinton v. City of New York (1998) Line Item Veto Act.

Alden v. Maine (1999) Fair Labor Standards Act provision for damage suits against state governments; extended to suits under Age Discrimination Act (Kimel v. Florida Board of Regents, 2000), Americans with Disabilities Act (Board of Trustees of Univ. of Alabama v. Garrett, 2001).

United States v. Morrison (2000) Violence Against Women Act.


After the Civil War the Supreme Court repeatedly used its power to declare acts of the Reconstruction-era Congress unconstitutional. In 1867 it barred loyalty oaths for former Confederate supporters to practice law or serve in federal office as a violation of the Constitution's ban on ex post facto laws and bills of attainder. (See Attainder, Bill of.) The ruling in Ex parte Garland—the first decision to strike down an act of Congress by a narrow 5–4 vote—provided a libertarian precedent for twentieth-century rulings restricting use of loyalty oaths to try to bar suspected communists from public positions.

The Court's rulings against Reconstruction-era civil rights statutes proved less durable than its decision on loyalty oaths. In five rulings between 1876 and 1906 the Court struck down provisions of congressional statutes designed to guarantee civil rights to blacks. The most important ruling came in five companion cases, collectively called the Civil Rights Cases (1883). The Court's 8–1 decision struck down provisions of the Civil Rights Act of 1875 that made it a crime to deny anyone equal access to and enjoyment of public accommodations on account of race. The Court declared that the Fourteenth Amendment allowed Congress to forbid state action interfering with the rights of blacks, but that it did not permit legislation aimed at private racial discrimination. On similar grounds, the Court in the same year overturned an anticonspiracy statute intended to protect blacks from retaliation by the Ku Klux Klan, lynch mobs, and the like.

Earlier, in 1876, the Court had overturned a voting rights provision of the Civil Rights Act of 1866, which had been reenacted in modified form in 1870, as an infringement on states' rights. The provision was intended to punish state officials for obstructing blacks from voting. In 1903 the Court struck down another provision of the act aimed at private conduct to discourage blacks from voting. Three years later, in Hodges v. United States (1906), the Court struck down another provision that targeted private racial discrimination: a section of the 1870 act giving blacks “the same right … to make and enforce contracts … as is enjoyed by white citizens.”

These decisions helped allow racial segregation, both private and official, to take root in the South and elsewhere for nearly a century. But the force of the rulings evaporated in the civil rights revolution that began in the 1950s. Congress disregarded the precedents when it enacted the Civil Rights Act of 1964, which included a public accommodations provision, and the Voting Rights Act of 1965. The Supreme Court, under Chief Justice Earl Warren, readily upheld both laws. In 1968 the Court expressly overruled Hodges, holding that the 1870 civil rights law could be invoked to bar private racial discrimination in housing.


The Court's narrow view of federal powers in the second half of the nineteenth century extended to other areas as well. In 1870 the Court struck down a congressional ban on the sale of inflammable naphtha as a “mere police regulation.” In 1878 it threw out a provision against bankruptcy fraud on similar grounds. The Court's view represented the times. The nation was busy with the industrial revolution and westward expansion. For the most part, Congress maintained a hands-off attitude toward business, giving the Court few occasions to test the reach of federal legislative power.

By the turn of the century, Congress was being pressured by populists, progressives, and organized labor to take a more active role in regulating social and economic affairs. The Court, however, resisted. One example was its 5–4 decision in 1895 to overturn the new federal income tax on the ground that it violated the constitutional requirement that direct taxes be apportioned among the states according to population. In 1908 the Court held unconstitutional two more laws backed by labor and opposed by business. An act enlarging the liability of railroads for injuries to their employees was thrown out, by a vote of 5 to 4, as extending beyond Congress's Commerce Power. Three weeks later, the Court invalidated a law that outlawed “yellow dog” contracts, which railroads used to make their employees promise not to join labor unions. The Court found the law an undue restriction on freedom of contract.

A more dramatic conflict between Congress and organized labor on one side and the Court and business interests on the other arose over the issue of child labor. Twice the Court struck down acts of Congress designed to restrict the use of child labor in plants and factories. In Hammer v. Dagenhart (1918) the Court voted 5–4 to strike down a law barring from interstate commerce goods produced by child workers, on the grounds that it sought to regulate manufacturing rather than commerce. Congress responded in the same year with a 10 percent excise tax on goods manufactured with child labor. But in 1922 the Court, by a vote of 8 to 1, struck down the tax as an infringement of states' rights under the Tenth Amendment. Congress then approved a constitutional amendment to try to overturn the decisions, but it fell short of ratification.

Conflict with Congress over economic measures continued during the 1920s. In 1923 the Court threw out, by a vote of 5 to 3, a law establishing a minimum wage for women in the District of Columbia, basing its decision on freedom of contract. Twice the Court invalidated efforts by Congress to allow sailors and other maritime workers the benefits of state worker compensation laws, citing the constitutional mandate for uniform maritime laws. Twice the Court struck down taxes on commodities futures trading. And in five cases the Court struck down expansive provisions for income, estate, or gift taxes.

The New Deal

The clashes over the federal government's power in economic affairs reached the point of constitutional crisis in the 1930s. To try to lift the country out of the Great Depression, President Franklin D. Roosevelt pushed a flurry of economic measures through a supportive Congress, only to find many of them overturned or restricted by the Supreme Court. Within a one-year period, the Court struck down three major pieces of the president's New Deal program, along with several lesser enactments.

The Court's most important ruling was the unanimous decision on May 27, 1935, in Schechter Poultry Corp. v. United States. The ruling held that the industry code provisions of the National Industrial Recovery Act amounted to an unconstitutional delegation of congressional power. On January 6, 1936, the Court cited the Tenth Amendment in striking down, by a vote of 6 to 3, the Agricultural Adjustment Act, designed to stabilize the agricultural market through crop controls and price subsidies. On May 18, 1936, the Court nullified, 5–4, a law designed to control the working conditions of miners and to fix prices for the sale of coal. The ruling called it an impermissible attempt to regulate manufacturing and struck down its industry funding scheme as an invalid tax.

Roosevelt responded, in his second term, with his infamous Court-packing plan to try to gain the power to make new appointments to the Court. The plan failed, but the justices had already begun to shift their position. In addition, retirements over the next several years allowed Roosevelt to reshape the Court more to his views. As a result the Court sustained several major New Deal enactments, including the Fair Labor Standards Act, the National Labor Relations Act, and revised versions of virtually all the major legislation it had struck down in 1935 and 1936. In the process the Court erased many of its restrictive precedents on economic measures, including the decisions barring the child labor and minimum wage laws.

Individual Rights

In the late 1930s the Supreme Court also began to adopt a more favorable attitude toward assertions of individual rights in areas such as freedom of speech, racial discrimination, and criminal law and procedure. (See Speech, Freedom of.) Over the next four decades the Court brought about what has been called a rights revolution. That phase lasted until a conservative majority formed in the 1970s and solidified in the 1980s. Although many of these rulings involved state laws, the Court's new attitude toward individual rights also led to conflicts with Congress in several areas.


Congress and the executive branch established a web of antisubversive laws and regulations at the beginning of the cold war after World War II. (See Communism.) In the 1950s the Court generally upheld such laws, but a solid liberal majority struck down several provisions in the 1960s. In three rulings the Court invalidated sections of the 1950 Subversive Activities Control Act that barred members of communist front organizations from obtaining a passport (1964) or working in defense plants (1967) and subjected Communist Party members to prosecution for failure to register as members of a subversive organization (1965). The Court in 1965 also invalidated a law barring Communist Party members from serving as union officers.

Civil Rights

The Court relied on the Equal Protection Clause of the Fourteenth Amendment in its historic ruling in Brown v. Board of Education (1954) prohibiting racial segregation in public schools. But the Fourteenth Amendment applied only to the states, not to the federal government. A less well-known companion decision, Bolling v. Sharpe, interpreted the Due Process Clause of the Fifth Amendment to contain an implicit equal protection requirement applicable to federal legislation. The ruling invalidated school segregation laws for the District of Columbia that dated from 1862. The legal principle provided the basis for the Court in the 1970s to strike down some provisions of federal benefits programs as illegal sex discrimination.

Criminal Procedure

On a handful of occasions before 1950, the Court had invoked the procedural protections for criminal defendants in the Fourth, Fifth, Sixth, and Seventh Amendments to strike down provisions of federal laws. The Warren Court's criminal procedure revolution of the 1950s and 1960s resulted in several more such rulings. The Court limited the jurisdiction of military courts in half a dozen cases between 1955 and 1967. Three decisions in the late 1960s relied on the Fifth Amendment privilege against self-incrimination to restrict use of tax law provisions in prosecutions for gambling, firearms, and drugs. In 1968 the Court overturned the death penalty provision of the Lindbergh Kidnapping Act, saying that it penalized the right to jury trial by allowing imposition of the death penalty only if recommended by a jury.

Specialist Theresa Pharms undertakes the “Green Hell” obstacle course in Panama in 1980 as part of her U.S. Army training. The controversy over allowing women to participate in military combat remains unsettled. In 1981 the Court affirmed Congress's right to ban women from the draft, a decision offensive to many women's rights advocates. (Source: U.S. Department of Defense.)

The Court in 1978 also gave businesses new Fourth Amendment protections by limiting warrantless inspections of workplaces under the Occupational Safety and Health Act.

Sex Discrimination

The Court in the 1970s established restrictions against sex discrimination with rulings that invalidated sex-based provisions in federal benefits programs. The pivotal ruling, Frontiero v. Richardson (1973), struck down a provision that made it harder for women than men in the military to gain dependent benefits for a spouse. The vote was 8–1, but the Court was divided in its reasoning. Although that division persisted, the Court in 1975 and 1977 struck down sex-based provisions for Social Security benefits and continued to expand sex discrimination protections in other areas as well.

Free Speech

A handful of federal provisions fell as the Court expanded free speech protections—a trend that continued into the 1980s and 1990s. The Court struck down laws prohibiting demonstrations on the Capitol grounds (1972) or in front of the Supreme Court building (1983) or foreign embassies (1988). It overturned a ban on editorializing by public broadcasting stations (1984) and on “indecent” telephone messages (1989). In a dramatic confrontation with Congress and public opinion, the Court in 1990 struck down, by a vote of 5 to 4, a federal law against flag desecration, which Congress had passed four months after the Court's 1989 ruling overturning a similar state statute.

The Court's solicitousness toward free speech grew in the 1990s and continued into the 2000s, even as it became more conservative on other issues. It strengthened protection for commercial speech with several rulings striking down advertising regulations in diverse areas such as beer labeling (1995), casinos (1999), tobacco advertising (2001), agricultural product promotions (2001), and prescription drugs (2002). The Court showed solicitude toward sexual expression with rulings that struck down part of a law aimed at limiting sexually indecent programming on cable television and, more significantly, invalidated Congress's first attempt to prevent children from having access to indecency on the Internet.

Political Speech

The Court in the 1970s and 1980s created new First Amendment rights for political speech by striking down several major provisions of campaign finance reform laws. The decision in Buckley v. Valeo (1976) struck down limits on campaign spending and on the amount of money that candidates could contribute to their own campaign. Later the Court also struck down limits on “independent” campaign expenditures by individuals or groups.

Separation of Powers

The end of the rights revolution under Chief Justices Warren E. Burger and William H. Rehnquist did not eliminate clashes with Congress. New conflicts arose as a result of the Court's strict interpretations of the Constitution's limitations on congressional power.

The most important ruling, Immigration and Naturalization Service v. Chadha (1983), struck down the so-called legislative veto, a mechanism by which a negative vote in just one chamber or one committee of Congress could block executive branch actions and regulations. The Court's 7–2 decision, written by Chief Justice Burger, held that Congress could overturn regulatory actions only by a law passed by both the House and the Senate. More than two hundred laws were said to be affected by the decision, including major enactments such as the War Powers Resolution of 1973, the Congressional Budget and Impoundment Control Act of 1974, and the Federal Election Campaign Act Amendments of 1979. In a 1987 decision, however, the Court limited the effect of the ruling by allowing such statutes to stand with the legislative veto provisions nullified.

Fifteen years after Chadha, the Court again adopted a formalist view of Congress's lawmaking powers in overturning a measure that gave the president the power to “cancel” individual spending items or limited tax benefits in bills passed by Congress. The Court, in a 6–3 ruling in Clinton v. City of New York (1998), said that the Line Item Veto Act violated the procedures for enacting laws described in the Constitution's Presentment Clause.

Other decisions regarding the separation of powers were less sweeping. Buckley v. Valeo also struck down a provision allowing Congress to name four members of the Federal Election Commission on the grounds that it violated the president's appointment power. A 1982 decision overturned a provision of the 1978 Bankruptcy Reform Act creating a new corps of bankruptcy judges without the tenure and salary protections accorded other federal judges under Article III of the Constitution. In Bowsher v. Synar (1986) the Court struck down one provision of the Gramm-Rudman-Hollings balanced budget act giving the comptroller general, a congressional official, a role in enforcing the act's spending reduction requirements. Congress responded to all three decisions by revising the statutes to mend the constitutional defects.

In another ruling on congressional power, the justices in 1997 nullified a law aimed at overturning a 1990 Court ruling that limited protection for religious practices. The Court said that the law, the Religious Freedom Restoration Act, improperly intruded on the Court's authority to interpret the Constitution.

State Sovereignty

The Court in the 1990s also clashed with Congress over issues of states' rights. In 1995 it invalidated a law making it a federal crime to possess a gun within a thousand feet of a public, private, or religious school. The 5–4 decision in United States v. Lopez held that the law went beyond Congress's power to regulate interstate commerce. In 2000 the Court also ruled that Congress had exceeded its Commerce Clause powers when it enacted a law allowing victims of sex-motivated crimes to sue their assailants in federal courts.

In a separate line of cases, the Court protected state governments from private damage suits for violations of federal laws, all of them by 5–4 votes. The first of the decisions, in 1996, involved a relatively obscure law regulating Indian gaming that allowed tribes to sue states in federal court to resolve disputes over gambling on reservations. Later rulings barred private damage suits under more significant statutes, including the Fair Labor Standards Act (1999), the Age Discrimination Act (2000), and the Americans with Disabilities Act (2001).

In yet another 5–4 decision, the Court in 1997 held unconstitutional a major part of the Brady Act, which sought to impose on local law enforcement officials the burden of conducting background checks for gun purchasers. The ruling in Printz v. United States held that Congress had no power to require state or local governments to enforce a federal regulatory law.


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