The McCardle Decision

The McCardle Decision

The last subsection closed on a question the Exceptions Clause leaves open on its face: if Congress may decline to confer appellate jurisdiction, may it also withdraw jurisdiction already conferred, even while a case is pending? The Supreme Court answered yes in Ex parte McCardle, and because the answer depends on the order of events, the case is best learned as a story with dates.¹ William McCardle edited a newspaper in Vicksburg, Mississippi, and military authorities held him for trial before a military commission on charges founded on articles in his paper that were alleged to be incendiary and libelous.² The custody rested on the Reconstruction Acts, the statutes through which Congress had imposed military government on the former Confederate states, and McCardle's claim was that those Acts exceeded Congress's power.³

The statute that carried his case upward was an act of February 5, 1867. It extended the power to grant writs of habeas corpus, which are court orders requiring a custodian to justify a prisoner's detention, to anyone restrained in violation of the Constitution or federal law, and it allowed appeals from the circuit court to the Supreme Court.⁴ McCardle petitioned the circuit court under that act, the military commander admitted the restraint but denied that it was unlawful, and the court remanded McCardle to custody while allowing him to appeal.⁵ The Supreme Court denied a motion to dismiss the appeal, heard argument on the merits on March 2, 3, 4, and 9, 1868, and took the case under advisement.⁶

With the case ready for decision, Congress acted. Three days after the last argument, it attached to a tax bill a repeal of the provision authorizing Supreme Court appeals in habeas cases, and members of Congress said openly that the purpose was to remove McCardle's case from the Court's docket and prevent a ruling that might invalidate Reconstruction.⁷ President Andrew Johnson vetoed the measure on March 25, and Congress overrode the veto on March 27.⁸ By its own words the repeal reached the pending appeal, since it withdrew so much of the 1867 act as authorized an appeal to the Supreme Court, or the exercise of any such jurisdiction by that Court, "on appeals which have been, or may hereafter be taken."⁹ The Court's attention was directed to the new statute, counsel asked to be heard on its effect, and the Chief Justice was detained from the bench for a time by his duties in the Court of Impeachment, so the cause stayed under advisement until argument on the repeal could be heard.¹⁰ The sequence, then, was argument on the merits, repeal over a veto, further argument on the repeal's effect, and dismissal.

The Court treated jurisdiction as the first question, because if the repeal took away the jurisdiction the 1867 act had defined, discussing anything else would be useless.¹¹ Chief Justice Chase accepted that the Court's appellate jurisdiction comes from the Constitution and not from acts of Congress, and he added that it is conferred "with such exceptions and under such regulations as Congress shall make."¹² The previous subsection described implied exceptions, which arise by inference when a statute grants some jurisdiction and omits the rest. This exception was different, because it was made in terms: the act repealed the affirmative grant of habeas appeals, and the Court found it "hardly possible to imagine a plainer instance of positive exception."¹³

Because the exception was express, the only remaining question was whether Congress had power to make it, and the Court confined itself to that question. The Court said it was "not at liberty to inquire into the motives of the legislature."¹⁴ The reason lies in how the clause is written. It confers the power to make exceptions in express words, and a power conferred in express words does not shrink because the legislature uses it for a purpose the Court dislikes. Had the Court asked whether Congress meant well, every jurisdictional statute would invite litigation over legislators' intentions, and the Court would hold a veto over exceptions whenever it disapproved of the reason for them. The result here is stark, because Congress announced that it wanted to stop a ruling and the Court dismissed anyway.

Once the jurisdiction was gone, the Court saw nothing left to do. Chief Justice Chase wrote that "Jurisdiction is power to declare the law, and when it ceases to exist the only function remaining to the Court is that of announcing the fact and dismissing the cause."¹⁵ A court acts only by authority, so a court without jurisdiction that went on to decide the merits would be acting without authority, and the one act still open to it is to say that the authority has ended. The Court accordingly dismissed the appeal for want of jurisdiction.¹⁶

The repeal applied even though the appeal had already been argued. The Court relied on the general rule that a repealed act is treated, except as to transactions past and closed, as if it never existed, and it noted its earlier holdings that no judgment can be rendered in a suit after repeal of the act under which the suit was brought.¹⁷ An argued appeal is not a past and closed transaction, because no judgment has been entered and the Court's power to enter one depends on a grant of jurisdiction that must still exist on the day of decision. The syllabus states the point directly: repeal of such an act while an appeal is pending is not an exercise of judicial power by the legislature, whether the repeal takes effect before or after argument.¹⁸ Congress had not announced who should win McCardle's petition; it had removed the statutory route by which the Court could decide it. Students often assume that argument already heard fixes the Court's power to rule, and McCardle holds the opposite.

The Court's own limiting phrase, "past and closed," marks where the holding stops, and one changed fact shows it.¹⁹

A later case draws a different boundary and previews a separate limit taken up near the end of this chapter. In United States v. Klein, Congress answered a Court ruling for pardoned claimants by declaring that a pardon was proof of disloyalty and directing the courts to dismiss such cases for want of jurisdiction.²⁰ The Court held that statute invalid because the withdrawal of jurisdiction was only a means of dictating the result of those cases.²¹

One passage at the end of the McCardle opinion must be read before the case is used as authority. Counsel had supposed that giving effect to the repeal would deny the Court's whole appellate power in habeas corpus cases, and the Court called that an error: the 1868 act excepted only appeals from circuit courts under the 1867 act and did not affect the jurisdiction previously exercised.²² That statement limits what the repeal accomplished, and the next section takes up what the limit means for the way McCardle should be read.