Evening star., 1939-10-09
Free Legal Advice

uey JeHeTdl murphy submit an
opinion on the extent Of presidential
powers in time of war or other ma
tional emergency was a large order.
Mr.. Murphy was justified in declin-
ing to render such an extraordinary
opinion. Senator Vandenburg, au-
thor of the resolution asking for the
Interpretation, conceded that the
Attorney Generals stand was "prob-
ably sound under the precedents. 4"
AS Mr.. Murphy pointed out in his
letter to Vice President Garner in
response to the resolution, similar
requests for legal advice have been
respectfully refused by previous at
torneys general. In their book,
Federal Justice" former Attorney
General Homer Cummings and his
assistant, Carl Mcfarland, have given
an interesting account of the origin
of the doctrine that the advisory
powers of the Department of Justice
and it's officials are strictly limited.
The doctrine was first specifically
recorded by Attorney General Will
liam Writ, who served from 1917 to
1929 When Writ took over his du-
ties he inherited no Office space, no
clerical staff, no records of any kind.
He soon found himself submerged
with requests for legal advice from
private citizens, firms, members of
Congress and minor Government
officials. He decided that it. would
be humanity impossible to comply
will all these requests with the linn
tied facilities at hand and he pro-
ceeded to seek an avenue of escape.
He found it by examining carefully
the Judiciary Act of 1889, which di-
rected the Attorney General to give
his advice and opinion upon ques-
tions of law when required -by the
President of the United States, or
when requested by the heads Of any
of the departments, touching on any
matters that may concern their de-
partments." Writ, harassed by null
titudinous demands for legal advice
from many non-executive sources
including Congress - wrote: my
opinion is that the Attorney General
is not bound by the law as it now
stands to obey these calls"
Writ found it exceedingly difficult
to reject congressional requests for
legal opinions, however. Edmund
Randolph, first Attorney General,
had advised the House in 1892 that
Andrew Jackson was not entitled to
be paid for his services as district at
torney in the Southwest Territory,
and all of Wirt's other predecessors
had made it practice to give advice
to Congress on sundry matters. After
complying reluctantly with several
congressional requests, Writ finally
told Congress that he had been CIV
ing opinions merely as a matter of
courteSy-not because he was COM
PEELED by law to do so-and he sug-
gested that If the custom of asking
him for legal advice was to continue,
the Judiciary Act should be revised
to authorize such duties. Instead,
the houses of Congress resorted to
the scheme of asking for legal coun-
sci by way of the President or men,
bers of the cabinet. Writ then held
that the indirect and circuitous
mode" used did not meet conditions
of the law. From that time on the
Department of Justice has adhered
rigidly to the rule against giving
legal advice to anybody except the
President and his cabinet-and then
only in matters pertaining to their
respective departments.
1t is clear, therefore, that Attorney
General Murphy had ample prece-
dent for declining to give the Senate
an opinion as to emergency execu-
tive authority. That he wished to
go as far as he legally could in sat-
isfying the curiosity of the Senate is
evidenced by the trouble he took to
compile list of approximately one
hundred laws from which the Presi-
dent derives varied wartime or emer-
gency powers. From these laws the
Senate itself is at liberty to draw it's
own conclusions. The list of laws is,
as Senator Vandenburg remarked,
formidable-but it does not follow
necessarily that the powers them
selves are formidable. The Consti-
tuition vested tremendous authority
in the executive branch, in time of
peace as well as of war. The conduct
of foreign relations in itself is a grave
responsibility. So is the command
of the Army and Navy. These are
reasons why the Office of President
of the United States is a sacred trust
and one of the most important
jobs in the world.
It is hoped that Hitler, often de-
nounced in chronological terms, may
prove to be insect OF the type that
gives one tremendous, vicious sting,