Ex parte McCardle

74 U.S. 506 (1869), argued 2–4 and 9 Mar. 1868, decided 12 Apr. 1869 by vote of 8 to 0; Chase for the Court, Wayne had died. A product of the often‐strained relations between the Supreme Court and Congress during Reconstruction, the McCardle case posed fundamental questions concerning Congress's ability to use its authority over the Court's appellate jurisdiction to curb judicial independence.

In late 1867, army officials responsible for administering Reconstruction in Mississippi arrested William McCardle, a Vicksburg editor, charging him with publishing libelous editorials that incited insurrection. Invoking the authority conferred by the Reconstruction Act (1867), they ordered McCardle tried by military commission. The editor challenged the government's action, asserting that Ex parte Milligan (1866) precluded military trial of civilians when the civil courts were open and that the Reconstruction Act was therefore unconstitutional (see Military Trials and Martial Law). Relying on the Habeas Corpus Act of 1867, which directed federal courts to issue writs of habeas corpus in cases involving persons who were confined in violation of their constitutional rights, he sought relief in the United States circuit court. When that tribunal rejected his argument, McCardle invoked a provision of the Habeas Corpus Act allowing the Supreme Court to hear appeals in habeas corpus, bringing the politically explosive question of the Reconstruction Act's constitutionality before the high court.

Republican leaders in Congress feared that the Court might strike down the act and destroy the party's Reconstruction program. Consequently, in March 1868, after the Court had heard arguments but before it had rendered a decision, Congress struck at the Court's jurisdiction by repealing the provision of the Habeas Corpus Act allowing appeals to the Supreme Court. Although Justices Robert C. Grier and Stephen J. Field wished to decide the case before Congress enacted the repeal, the majority rejected such a course. With the end of the Court's term approaching, the justices agreed to hold the case over until the next term.

When the Court issued its opinion, it bowed to Congress, dismissing the case for want of jurisdiction without passing judgment on the Reconstruction Act. Chief Justice Salmon P. Chase pointed out that the Constitution provided that the Court was to exercise its appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Because Congress possessed express authority to make exceptions to the Court's appellate jurisdiction, he continued, the 1868 repeal measure was constitutional, regardless of Congress's motive. Consequently, the Court had no jurisdiction to hear McCardle's appeal and must dismiss the case.

Although sometimes viewed as an example of the Reconstruction Court's supineness, McCardle actually suggests its resiliency. In concluding his opinion, Chase pointedly noted that while Congress had repealed the provision of the Habeas Corpus Act on which McCardle had relied, this did not affect the jurisdiction that the Court possessed under other statutes. This was a thinly veiled reference to the Judiciary Act of 1789, which authorized the Court to issue writs of habeas corpus to persons held under federal authority. Several months later, in Ex parte Yerger (1869), the Court agreed to hear a challenge to the Reconstruction Act brought under the 1789 statute by a Mississippi civilian who was charged with the murder of an army officer and held for trial by a military court. Although the Court again failed to reach the merits, its willingness to accept jurisdiction suggests that it had not been overawed.

McCardle has never been repudiated by the Court and has been read by some authorities to suggest unlimited congressional authority over the Court's jurisdiction. Indeed, some politicians have used it to support legislation prohibiting the Court from rendering unpopular decisions on controversial matters such as school prayer and busing. Others disagree, arguing that the case should not be read to permit Congress to use its authority to regulate the Court's jurisdiction to shield government policies from judicial review. They point out that in McCardle, because the avenue provided by the Judiciary Act remained open, the Court did not accept congressional action denying the federal courts authority to hear challenges to the Reconstruction Act. Moreover, they note that in U.S. v. Klein (1872), the Court limited Congress's authority, holding that it may not limit the Court's jurisdiction to control the results of a particular case.

See also Judicial Power and Jurisdiction.

Bibliography

• Charles Fairman, History of the Supreme Court of the United States, vol. 6, Reconstruction and Reunion, 1868–88. Part I (1971)

— Donald G. Nieman

Ex Parte Mccardle, 7 Wallace 73 U.S. 506 (1869), is the most famous judicial acquiescence in the Radical Republican punishment of the postwar South. The Southern rebellion having ended in 1865, despotic military occupation had continued across the Southern states, and military courts afforded no civil rights under the Constitution.

William McCardle, a Natchez, Mississippi, newspaper editor, had criticized Congress and General E. O. C. Ord, the military commander of Mississippi. McCardle was tried before a military commission, which convicted him of publishing inflammatory articles. He sought habeas corpus from the circuit court, which denied it, and he appealed to the U.S. Supreme Court, seeking release through habeas corpus.

The Supreme Court had issued an opinion in 1866 strongly limiting the power of military commissions over civilians, but it had refused to hear two cases brought by states against federal officials in 1867. In December of that year, it took jurisdiction over McCardle's appeal, which was brought under an 1867 law that assured that freedman and federal officials could have federal review of unlawful arrests in state court by allowing an appeal of cases seeking habeas corpus from any federal or state court. The press, and increasingly the Congress, believed that McCardle's case would lead the Court to invalidate most of the Reconstruction statutes. While McCardle's case was being argued, Congress rushed through, over President Andrew Johnson's veto, a repeal of the 1867 law that allowed McCardle's appeal.

Chief Justice Salmon P. Chase, speaking for a unanimous Supreme Court, ruled the amendment of the statute was binding upon the Court, and the effect of the repeal was to make it as if the 1867 statute had never existed. Thus, he ruled that the Court lacked jurisdiction and McCardle's appeal was dismissed. Later that same term, Chase wrote another habeas case, Ex Parte Yerger, 75 U.S. 85 (1869), reasserting the courts' powers of habeas corpus under the law existing prior to 1867.

The McCardle opinion was both immediately and repeatedly criticized for allowing Congress to determine the outcome of cases pending before the courts, as well as for allowing the military trial of civilians. The under-lying policy of not allowing military jurisdiction over American civilians was clearly resolved in Reid v. Covert (1946). Still, several points of Chase's opinion remain the law in force, particularly that a repeal of habeas jurisdiction applies to pending cases but that it does not affect habeas jurisdiction that existed prior to that statute.

Bibliography

"Ex Parte McCardle: Judicial Impotency: The Supreme Court and Reconstruction Reconsidered." American Historical Review 72 (1967).

Foner, Eric. Reconstruction, 1863–1877: America's Unfinished Revolution. New York: Harper and Row, 1988.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

Van Alstyne, William O. "A Critical Guide to Ex Parte McCardle." Arizona Law Review 15 (1973).

—Steve Sheppard

Ex parte McCardle
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
Holding
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 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.

Contents 1 Case history 2 Issues 3 Holdings 4 Rationale 5 Recent Analysis 6 Notes 7 External links

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.

Issues

Three 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?

Holdings

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.

Rationale

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 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.

Notes

1. ^ 74 U.S. 506 (Full text of the decision courtesy of Findlaw.com)
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

• Ex parte McCardle Case Brief at Lawnix.com

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)