Ex parte McCardle

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Ex parte McCardle
Seal of the United States Supreme Court
Argued March 2 – 4, 9, 1868
Decided April 12, 1869
Full case nameEx parte McCardle
Citations74 U.S. 506 (more)
7 Wall. 506; 19 L. Ed. 264; 1868 U.S. LEXIS 1028
Case history
PriorAppeal 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
Chief Justice
Salmon P. Chase
Associate Justices
Samuel Nelson · Robert C. Grier
Nathan Clifford · Noah H. Swayne
Samuel F. Miller · David Davis
Stephen J. Field
Case opinion
MajorityChase, joined by unanimous
Laws applied
U.S. Const. art. III

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869), 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.[1]

Case history[edit]

During the Civil War Reconstruction, newspaper publisher William McCardle printed some "incendiary" articles, advocating opposition to the Reconstruction laws enacted by Congress. He was jailed by a military commander under the Military Reconstruction Act of 1867. 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' law. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to review denial of habeas corpus 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 under Article III, section 2 of the Constitution.


Two issues were raised by this case: Whether the Supreme Court had jurisdiction to hear the case, and if so, whether McCardle's imprisonment violated his Fifth Amendment Due Process rights.


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." Since the Court held it lacked jurisdiction to hear the case, the second question was not answered. Since 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 that 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 had no choice but to dismiss the case.

Recent analysis[edit]

Interest in Ex parte McCardle was revived in the early 2000s when 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[who?] have argued[citation needed] that 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.

See also[edit]


  1. ^ Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
  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."

External links[edit]