Article 3, Section 2, Clause 2 — Exceptions Clause And Congressional Control Over Appellate Jurisdiction

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Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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.

Unlike the Supreme Court’s original jurisdiction,[1](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn1art3 " For discussion of the Court’s original jurisdiction, see . ") Article III provides that the Court’s appellate jurisdiction is subject to “Exceptions” and “Regulations” prescribed by Congress.[2](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn2art3 " U.S. Const. art III, § 2, cl. 2. ") Congress and the Court have construed this provision, sometimes called the “Exceptions Clause,” to grant Congress significant control over the Court’s appellate jurisdiction and proceedings. In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases.

Article III, Section 2, Clause 2 provides that the Supreme Court “shall have” appellate jurisdiction over certain categories of cases and controversies, subject to exceptions and regulations by Congress.[3](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn3art3 " Id. ") Several Supreme Court decisions have considered whether the Article III grant of Supreme Court appellate jurisdiction is self-executing—that is, whether it would allow the Court to exercise appellate jurisdiction absent express authorization from Congress. In practice, since the first Judiciary Act of 1789, Congress has enacted legislation that affirmatively grants the Supreme Court appellate jurisdiction over only a subset of covered cases rather than providing (or assuming) that the Court can hear all such cases and carving out discrete exceptions.[4](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn4art3 " See, e.g., Judiciary Act of 1789, 1 Stat. 80. ") In the 1796 case Wiscart v. D’Auchy, the Court considered whether it could review admiralty cases.[5](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn5art3 " 3 U.S. (3 Dall.) 321 (1796). ") A majority of the Court held that it had jurisdiction to review admiralty cases because such cases fell within the scope of a statute authorizing review of federal circuit court decisions in “civil actions.” [6](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn6art3 " Id. at 326. ") In so holding, the majority noted that that congressional authorization was necessary to create jurisdiction and that, if Congress provided for jurisdiction, the Court must accept it, stating: “If Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” [7](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn7art3 " Id. at 327. ") By contrast, in the 1810 case Durousseau v. United States, Chief Justice John Marshall accepted the validity of legislation limiting the Court’s jurisdiction but suggested that, in the absence of such congressional action, the Court’s appellate jurisdiction would have been measured by the constitutional grant.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn8art3 " 10 U.S. (6 Cranch) 307, 313–14 (1810) ( “Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. . . . [I]n omitting to exercise the right of excepting from its constitutional powers, [Congress] would have necessarily left those powers undiminished. The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.” ). See also Clarke v. Bazadone, 5 U.S. (1 Cranch) 212, 213 (1803) ( “Congress has made no exception of the present case; and no regulation of congress was necessary to give this court the appellate power. It derives it from the constitution itself.” ); United States v. More, 7 U.S. (3 Cranch) 159, 173 (1805) (averring that the Constitution would be “the only standard by which [the Supreme Court’s] powers could be tested” in the absence of legislation describing the Court’s jurisdiction, “[b]ut as the jurisdiction of the court has been described, it has been regulated by congress” ). ") Several cases have taken the view that “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” [9](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn9art3 " Barry v. Mercein, 46 U.S. (5 How.) 103, 119 (1847); see also Daniels v. Railroad Co., 70 U.S. (3 Wall.) 250, 254 (1865); Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799). ") However, more recent cases indicate support for the notion that the Supreme Court would have appellate jurisdiction over certain cases and controversies absent legislative action.[10](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn10art3 " See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512–13 (1869) ( “It is quite true . . . that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred ‘with such exceptions and under such regulations as Congress shall make.’” ); Felker v. Turpin, 518 U.S. 651, 661 (1996); Hamdan v. Rumsfeld, 548 U.S. 557, 575 (2006). ")

Congress has on occasion used its power to regulate Supreme Court jurisdiction to forestall a possible adverse decision from the Court. In Ex parte McCardle, the Court granted certiorari to review the denial of a petition for a writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction.[11](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn11art3 " 74 U.S. (7 Wall.) 506 (1869). ") Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress overrode the President’s veto to enact a provision repealing the statute that authorized the appeal.[12](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn12art3 " By the Act of February 5, 1867, § 1, 14 Stat. 386, Congress had authorized appeals to the Supreme Court from circuit court decisions denying a petition for a writ of habeas corpus. Previously, the Court’s jurisdiction to review habeas corpus decisions, based in Section 14 of the Judiciary Act of 1789, 1 Stat. 81, was somewhat unclear. Compare United States v. Hamilton, 3 U.S. (3 Dall.) 17 (1795), and Ex parte Burford, 7 U.S. (3 Cranch) 448 (1806), with Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). The repealing statute was the Act of March 27, 1868, 15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437. ") Although the Court had already heard argument in the case, it dismissed the action for want of jurisdiction. The Court stated, “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” [13](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn13art3 " 74 U.S. (7 Wall.) at 513. As discussed further below, in both McCardle and a later case, Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869) the Court indicated that the Judiciary Act of 1789 gave it the authority to review on certiorari a circuit court’s denial of a habeas petition, meaning that the repeal at issue in McCardle did not deprive the Court of all jurisdiction over the matter but simply eliminated one possible statutory grant. See infra note 26. ") Since its decision in McCardle, the Supreme Court has upheld numerous legislative limits on its jurisdiction.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn14art3 " See The Francis Wright, 105 U.S. 381, 385–386 (1882); Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926); American Construction Co. v. Jacksonville, T. & K.W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States v. Young, 94 U.S. 258 (1876); Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541 (1866); Railroad Co. v. Grant, 98 U.S. 398 (1878); Bruner v. United States, 343 U.S. 112 (1952); District of Columbia v. Eslin, 183 U.S. 62 (1901); Patchak v. Zinke, 138 S. Ct. 897 (2018); see also Walker v. Taylor, 46 U.S. (5 How.) 64 (1847). ")

Congress also possesses significant power to prevent Supreme Court appellate review by limiting the federal courts’ jurisdiction over certain classes of cases, or even specific cases, a practice sometimes called “jurisdiction stripping.” [15](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn15art3 " For additional discussion of jurisdiction stripping, see generally CRS Report R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein, by Joanna R. Lampe, >https://crsreports.congress.gov/product/pdf/R/R44967. ") The Constitution provides for the existence of a Supreme Court, but leaves to Congress the decision whether to establish inferior federal courts.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/exceptions-clause-and-congressional-control-over-appellate-jurisdiction#fn16art3 " U.S. Const. art III, § 1 ( “The judicial Power of the Unite