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Ex parte McCardle
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued March 2–4, 9, 1869
Decided April 12, 1869
Full case name Ex parte McCardle
Citations 74 U.S. 506 (more)
74 U.S. (7 Wall.) 506; 19 L. Ed. 264; 1868 U.S. LEXIS 1028
Prior history Appeal from the Circuit Court for the Southern District of Mississippi
Congress has the authority to withdraw appellate jurisdiction from the Supreme Court at any time.
Court membership
Case opinions
Majority Chase, joined by unanimous
Laws applied
U.S. Const. art. III

Ex parte McCardle, 74 U.S. 506 (1869)[1], is a United States Supreme Court decision that examines the extent of the jurisdiction of the Supreme Court to review decisions of lower courts under federal statutory law.


Case history

During the Civil War Reconstruction, William McCardle, a newspaper publisher and professional soldier in the Confederate Army reaching the rank of sergeant, published some "incendiary" articles which advocated opposition to the Reconstruction laws enacted by the Republican Congress. He was jailed by a military commander under the Military Reconstruction Act of 1867, a law passed by the United States Congress. Mr. McCardle invoked habeas corpus in the Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under Congress's law. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the Supreme Court to review denial of habeas petitions. After the case was argued but before an opinion was delivered, Congress suspended the Supreme Court's jurisdiction over the case, exercising the powers granted to Congress under Article III, section 2 of the Constitution.


Two issues were raised by this case: did the Supreme Court have jurisdiction to hear the case, and if so, did McCardle's imprisonment violate his rights under the Fifth Amendment?


Chief Justice Chase, writing for a unanimous court, validated congressional withdrawal of the Court's jurisdiction. The basis for this repeal was the exceptions clause of Article III Section 2.[2] But Chase pointedly reminded his readers that the 1868 statute repealing jurisdiction "does not affect the jurisdiction which was previously exercised." Because the Court held it lacked jurisdiction to hear the case, the second question was not answered. Because Congress withdrew jurisdiction to hear the case, McCardle had no legal recourse to challenge his imprisonment in federal court.


Durousseau v. United States, 10 U.S. 307 (1810) held that Congress's affirmative description of certain judicial powers implied a negation of all other powers. Creating such legislation was legitimate under the authority granted them by the United States Constitution.

By repealing the act which granted the Supreme Court authority to hear the case, Congress made a clear statement that they were using this Constitutional authority to remove the Supreme Court's jurisdiction. The court has no choice but to dismiss the case.

Recent Analysis

Ex parte McCardle has become revived recently because Congress repealed the statute that was being used by the detainees in the Guantanamo Bay detention camp to petition for habeas corpus. The government has argued that the Guantanamo cases should be dismissed, just as in Ex parte McCardle. Justice Antonin Scalia took this position in Hamdan v. Rumsfeld, for example.

However, some scholars have arguedthat McCardle is distinguishable because only one "path" to the Supreme Court was repealed by Congress in McCardle. In fact, the constitutionality of the Military Reconstruction Act (the issue McCardle was challenging) was eventually decided on habeas petitions that took a different "path" to the Supreme Court a few years after McCardle. Therefore, not all "paths" were closed. Based on this, Ex parte McCardle may only mean that Congress can regulate which method is used to petition for habeas as long as some "path" stays open. This distinction could be important since Congress has tried to foreclose all habeas petitions by Guantanamo detainees in response to Hamdan v. Rumsfeld in the Military Commissions Act of 2006.


  1. ^ 74 U.S. 506 (Full text of the decision courtesy of
  2. ^ "... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

See also

External links



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