Ex Parte McCardle 74 U.S. (7 Wall.) 506 (1869) • During the Civil War Reconstruction, McCardle, a newspaper publisher in Mississippi and not a member of the military, published some "incendiary" articles. He was jailed by a military commander under a law passed by Congress against libel and impeding Reconstruction. McCardle invoked habeas corpus in the Mississippi Circuit Court on the grounds that the Reconcstruction Acts were unconstitutional. The judge sent him back into custody, finding the military actions legal under Congress's law. • He appealed to the US Supreme Court under a congressional act of 1867 that allowed federal judges to issue writs of habeas corpus and hear appeals from circuit courts. • After the case was argued but before an opinion was delivered, Congress repealed the statute. • 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 5th Amendment? • In Marbury v. Madison, it was determined that the judiciary had the right to say what the law is. But this case says that maybe it's only in cases where the Congress says the judiciary has the right to say what the law is. • The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction should comes to be spoken of as acts granting jurisdiction, and not was acts making exceptions to the constitutional grant of is. • Basically, the original jurisdiction of the Supreme Court is protected by the Constitution, but appellate jurisdiction is solely an act of Congress, and Congress can restrict that jurisdiction. • US Supreme Court validated congressional withdrawal of the Court's jurisdiction. • The basis for this repeal was the exceptions clause of Article III Section 2. But 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. • In this case, it was determined that to some extent, Congress has the power to not give jurisdiction to the Court for certain cases. • However, it could be interpreted that this decision only means Project Wonderful -Your ad here, right now, for as low as $0that since the 1867 law had been repealed, the Court didn't want to raise the question of whether they had jurisdiction or not. They just wanted to get rid of the case. Chase's statement reserves the right of the judiciary to hear cases they had previously taken. • McCardle could have brought the case again, basing his arguments on older laws, not based on the 1867 law. However, the military let him go, so the case went away. • If you recognize the power of mere majorities of Congress to deprive the Supreme Court's jurisdiction in any case, you have severely broken down the concept of separation of powers. • This is known as the essential functions hypothesis. • Btw, An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In US and UK legal doctrine, it means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.