Article III, Section 2, Paragraph 2 of the Constitution states, “In all the other Cases before mentioned, 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.”
In Ex parte McCardle (1869), the Supreme Court upheld the right of Congress to withdraw appellate jurisdiction from the Supreme Court over a pending case. Congress had repealed the statute which gave the Court appellate jurisdiction in McCardle and the Court acquiesced in the repeal.
The McCardle opinion of the Court did not rely upon the Marbury doctrine of judicial review to reach a decision. The above plain language of the Constitution stood without tortuous chains of lawyerly reasoning to make the point. And despite occasional cases which have attempted to narrow the reach of the above constitutional clause through the years, it is still settled law today. Congress may exercise this power under the Constitution to limit jurisdiction of the Supreme Court.
Today, if Congress did not want the Supreme Court to decide the constitutionality of Obamacare by using the Marbury doctrine of judicial review, it could pass a law tomorrow to remove the subject of, say, the insurance purchase mandate, from the Court’s jurisdiction. [Read more...]