Evening star., 1952-04-26
How Much Power Has q President?

mitted yesterday to Judge DnUid A.
Pine by Assistant Attorney General
Holmes BGldridge IN support of the
claim that. a President has Uirtually
unlimited poWerSJ
T CLOSED the argument yesterday,
l. and your Honor put several questions
to me which should like first to address
myself to.
One was in discussing presidential
powers. You asked whether if the Presi-
dent empowered the Secretary of Com
merce to take me into custody and
execute me, would you have no power
to enjoin.
The case think nearest on the facts
to that situation is the case of Elk Parte
Merryman. It involved an application
for writ Of habeas corpus by the petit
toner to Chief Justice Taney.
The petitioner a resident of Balti-
more County, Md, was taken into
custody by the armed forces. They
compelled him to leave his home and
to accompany them to Fort McHenry.
The judge concluded that the petit
toner appeared to have been arrested
upon general charges of treason and
rebellion without proof and without
giving the names Of witnesses or
specifying the acts which in the judg-
ment of the military officers constituted
the crime.
And Chief Justice Taney in his
opinion held that the suspension of the
writ of habeaS corpus by President
Lincoln, which at that time had been
suspended, was invalid, but unless the
President chose voluntarily to follow the
decision the court was powerless to
make its order effective.
Hence he issued no injunction, but
merely filed his opinion and records in
the clerks Office and sent a copy to
President Lincoln
In his opinion he said, and I quote:
II shall therefore order all the pro-
ceedings in this case, with my opinion, to
be filed and recorded in the Circuit
Court of the United States for the
District Of Maryland. and direct the
clerk to transmit copy, under seal, to
s. the President of the United States.
1T will then remain for that high
officer in fulfillment of his constitutional
obligations to take care that the laws
be faithfully executed to determine
what measures he will take to cause the
civil process of the United States to
be respected and enforced"
Judge Pine: Didn't he also say that
he did not have the. superior physical
power?
Mr.. Baldridge: There was some dis
cussion Of that, your Honor. but he
based his decision
Judge Pine: That the court did not
have it at his disposal to overcome the
military force holding the petitioner
in Maryland? Wasn't there something
of that kind in that case?
Mr.. .Baldridge: There was some dis
cuSsion, your Honor, but as read the
case the decision was based upon the
courts belief that as court he had
no power to enjoin the Chief Executive.
Judge Pine: I have not read that
case in recent years, but I have read
it in years gone by, and my recollec-
ton was that Chief Justice Taney said
that he did not have the physical force
to combat the Army of the United
States and that he bowed to superior
HAAJ 'ROWO4S OuU LAG OAO 1lOU OCA1y
the power Of the court. But is that
applicable to the case that posed to
you?
Mr.. Baldridge: Well, it involved the
ultimate extension-your illustration
seems to me to involve the ultimate
extension of the absence of the power
of the courts, if there be such an
absence.
Judge Pine: That may have been a
hard case. Let me put one to you that
isn't quite so hard:
Suppose the President should declare
that the public interest required the
seizure of your home and directed an
agent to seize it and dispoSsess you.
Do you contend that the court could
not restrain that act because the
President had declared an emergency
and because he directed an agent to
carry out his will?
Mr.. Baldridge: I would rather, your
Honor, not to answer case in that
extremity. We are dealing here with
a situation involving q grave national
emergency. I think in determining
whether the courts can enjoin executive
power. it is essential that you look at
the circumstances which give rise to
the exercise of that power. And I
think that here, particularly in view
Of the affidavits that have been filed
in support of the Governments posi-
ton, that certainly the defendants
have made no attempt to deny that
there was and is grave national
emergency that requires the exercise
of rather unusual powers in these
particular circumstances.
And I don't believe any President
would exercise such unusual power
unless in his opinion there was a grave
and extreme national emergency.
Judge Pine: Is that your conception
of our Government?
Mr.. Baldridge: Our conception of the
powers Of the Executive. your Honor,
is that under the doctrine of Separa-
tionS of Powers which shall discuss a
little more at length after while, that
except for an occasional overlapping,
there have not been and are not any
instances of Importance where one
branch Of the Government attempts to