Ex Parte McCardle - Congressional control of appellate jurisdiction

• 1869. SCt affirmed that Congress does indeed have at least some power to control the boundaries of the SCt’s appellate jurisdiction.

• Facts. McCardle was imprisoned by a military government imposed by Congress as part of post-Civil War Reconstruction. He brought a habeas corpus action in federal circuit court, charging that the Reconstruction Acts under which he was imprisoned were unconstitutional. The circuit court rejected his claim, and he then appealed under an 1867 Congressional statute, authorizing the grant of habeas corpus by federal circuit courts and also authorizing appeal to the SCt in such cases.

• Congress restricts appeal. After SCt heard arguments in this case, but before it handed down its decision, Congress passed a law repealing the portion of the 1867 Act which allowed appeals to the SCt. (Congress did this out of fear that the SCt would hold that the Reconstruction Acts were unconstitutional). Thus Congress purported to deprive the SCt of its right to decide the McCardle case and any other habeas corpus case coming to it by appeal form the circuit courts.

• Holding. SCt upheld Congress’ restriction of the SCt’s jurisdiction. Opinion noted that the appellate jurisdiction of SCt is conferred “with such exceptions and under such regulations as Congress shall make.” The limitation enacted by Congress here was such an exception. Therefore, it had no jurisdiction to decide the case.

• This case, which seems to hold that Congress has unlimited power to strip SCt of its jurisdiction, is pure text, but does structure and prudence cut another way?

• It depends on how broad the holding is. It might be that Congress can restrict jurisdiction only if there’s some other way of getting to the SCt with one’s constitutional claim.

1. The 1789 Judiciary Act gave federal courts the power to issue writs of habeas corpus to federal prisoners; 1867 Act let federal courts issue writs to any court, state or federal.

2. McCardle didn’t plead the 1789 Act; after he sued, Congress repealed the 1867 Act. (83)

• Limited withdrawal. Observe that in the statute involved in McCardle, Congress was not completely withdrawing the SCt’s right to hear habeas corpus cases. Rather, it was withdrawing that right only where the SCt got the case by appeal from the lower courts; under the jurisdictional statutes of the time, an original petition for habeas corpus could be commenced in the SCt itself. Furthermore, even if only the lower courts had jurisdiction, this would still not leave the litigant without the possibility of federal habeas corpus relief; the lower court decision would simply be final.

• Some argue this case showed Congress’ usurpation of authority by preventing SCt from exercising JR.

• Contrast with McCulloch.

• Ex Parte McCardle – SC would not examine Congress’ motives

• McCulloch – SC would examine Congress’ motives

• Question – can we chalk this distinction up to fact that USC explicilty grants Congress power to set judiciary’s jurisdiction through exceptions clause; while “necessary and proper” is more subjective analysis?