 Justice Antonin Scalia took this position in "Hamdan v. Rumsfeld", for example.However, some scholars have argued that "McCardle" is distinguishable because only one "path" to the Supreme Court was repealed by Congress in "McCardle".In fact, the constitutionality of the Military Reconstruction Act (the issue McCardle was challenging) was eventually decided on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".