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Ex parte McCardle

Citation. 74 U.S. 506, 7 Wall. 506, 19 L. Ed. 264 (1869)
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Brief Fact Summary.

McCardle filed an appeal to the Supreme Court of the United States (Supreme Court) by invoking a habeas corpus statute enacted by Congress. While the case was still pending, Congress repealed the statute.

Synopsis of Rule of Law.

Congress may make exceptions to cases in which the Supreme Court has appellate jurisdiction under Article III, Section 2 of the United States Constitution (Constitution).


McCardle was arrested for publishing articles in a newspaper in Mississippi, which was under the control of the national army pursuant to the post Civil War reconstruction plan adopted by Congress. McCardle sought habeas corpus relief from a federal court in Mississippi on the ground that the reconstruction plan under which he was arrested was unconstitutional. After losing in the trial court, McCardle appealed to the Supreme Court under a habeas corpus statute enacted by Congress in 1867, which conferred jurisdiction on appeal to the Supreme Court over habeas corpus matters. While the case was still pending, prior to the Court announcing a decision, Congress repealed its 1867 act.


May Congress withdraw jurisdiction from the Supreme Court after jurisdiction has been given?


Though appellate jurisdiction of the Supreme Court is conferred by the Constitution, it is conferred “with such exceptions and under such regulations as Congress shall make.” By repealing the provision of the 1867 Act which affirmed the Supreme Court’s jurisdiction, Congress expressly made such an exception. Jurisdiction is the power to declare the law and when it no longer exists, the Court must dismiss the cause of action before it.
McCardle seeks a remedy, mandamus relief that only a court having original jurisdiction can grant. The Supreme Court has original jurisdiction only in cases involving ambassadors, other public ministers and consuls or suits in which a state is a party. Therefore, McCardle, who went directly to the Supreme Court, has initiated his suit in the wrong forum. The statute on which McCardle bases his suit is of no avail to him. The part of the Judiciary Act that authorizes the Supreme Court to issue writs of mandamus to persons holding office is unconstitutional.


This case is really about the extent to which Congress can restrict access to appellate review by the Supreme Court. It is worth noting that Congress did not remove all channels of obtaining Supreme Court review when it repealed the Act of 1867.

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