Claim of Unconstitutionality Will Not Be Heard to Excuse a Deliberate Course of Fraud

In Dennis v. United States (384 US 855, 865-866, 86 S Ct 1840, 16 L Ed 2d 973 [1966]), the Court addressed a provision of the National Labor Relations Act which prohibited a labor union from obtaining an investigation by the National Labor Relations Board (NLRB) unless each of its officers filed a non-Communist affidavit. the provision was repealed and substituted with a statute which was subsequently held unconstitutional. The petitioners, charged with conspiracy to obtain the NLRB's services on behalf of their union by submitting false non-Communist affidavits, thus argued that they could not be prosecuted under the repealed provision. The Court granted certiorari to answer, as pertinent here, whether the provision that the petitioners allegedly violated was unconstitutional given the decision holding the successor statute unconstitutional. The Court declined to determine the constitutionality of the provision, holding that "petitioners are in no position to attack the constitutionality of the statute. They were indicted for an alleged conspiracy, cynical and fraudulent, to circumvent the statute. Whatever might be the result where the constitutionality of a statute is challenged by those who of necessity violate its provisions and seek relief in the courts is not relevant here. This is not such a case. The indictment here alleges an effort to circumvent the law and not to challenge it--a purported compliance with the statute designed to avoid the courts, not to invoke their jurisdiction. "It is no defense to a charge based upon this sort of enterprise that the statutory scheme sought to be evaded is somehow defective ... There is no reason for this Court to consider the constitutionality of a statute at the behest of petitioners who have been indicted for conspiracy by means of falsehood and deceit to circumvent the law which they now seek to challenge." (Id. at 865.) The Court rejected the petitioners' attempt to distinguish prior Court decisions: "The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners' fraud. It is not an action to enforce the statute claimed to be unconstitutional." (Id. at 867.)