Ex parte McCardle (1869)
Author: Bram

Relevant Facts: McCardle was a civilian being held for trial by a military commission for various violations of the Reconstruction statutes.  McCardle applied for habeas corpus, relying on a 2/5/1867 statute authorizing the Court with authority.  Then, Congress came in and repealed the statute, two weeks after the case was to be argued in March, 1868.

Issue: Under constitutional law, does the Court have habeas corpus jurisdiction created by statute upon trying an 1868 case, after Congress has repealed that authority with a statute three weeks later?

Holding: No. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867, and does not affect the jurisdiction which was previously exercised.  (Congress can pass supplemental acts which expand or limit that jurisdiction.)

Court's Rationale/Reasoning: Appellate jurisdiction does not come from Congress; it is rather conferred upon the Court by the Constitution.  But, it is "...conferred under such exceptions as Congress shall make."  Take for example the setting up of the federal courts and the Court itself back in 1789; this is also an example of what kind of exception this Court abides under: the positive exception.  This means any granting of power was just that and not a sequestrating of it.

But the case-at-bar offers an express repeal of a Congressional grant.  This Court does not wish to peer into the minds of the legislature and can only examine its power under the Constitution.  And under such an act by the legislature, Congress has essentially rendered it unable to proceed in any cause at all.  It renders the Court as a tier of fact and that is all -- not what the Framers had in mind.

This Court cannot proceed to pronounce judgment in this case, for it no longer has jurisdiction of the appeal; the Court can only grant as much power as they already have.

Rule: "When an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed."