 Impermissibility of Deputizing the House Sergeant at Arms as
                 a Special Deputy U.S. Marshal

Appointment o f the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlap­
   ping o f congressional and executive accountability that is incompatible with separation of powers
   requirements, and it would impermissibly involve the institution of Congress in executive branch
   law enforcement.

                                                                                                    April 10, 1995

                M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l


   Y o u have asked our opinion whether there is any constitutional impediment
to the deputation of the Sergeant at Arms of the House of Representatives
(“ HSA” ) as a Special Deputy United States Marshal (“ DUSM” ). Given the
nature of the H SA ’s status and statutory duties as an Officer of the House —
 which include maintaining order in the House under the direction o f the
Speaker— it would be virtually impossible to separate or segregate those duties
from the law enforcement duties of a DUSM, giving rise to inherent conflicts
in accountability between the two positions. Consequently, we conclude that the
proposed arrangement would raise serious concerns under the constitutional sepa­
ration of powers.

                                           I. BACKGROUND

   On May 25, 1994, this office issued an opinion advising that the appointment
of a United States Senator as a DUSM would be inconsistent with separation
of powers principles.1 We primarily based that conclusion upon “ the principle
recognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may not
exceed its constitutionally prescribed authority by playing a direct role in exe­
cuting the laws.” 18 Op. O.L.C. at 125. Although such an appointment might
raise additional problems under the Incompatability Clause of Article I, Section
6, we did not reach that issue in the earlier opinion. See U.S. Const, art. I, §6,
cl. 2.
   We were subsequently asked whether the deputation of an employee on the
personal staff o f a U.S. Senator, for purposes o f providing protection and personal
security against threatened violence2, would be constitutionally permissible. We
concluded that it would. Our views on that issue were reflected in a Memorandum
from the Director of the United States Marshals Service (“ USM S” ) to you,
reviewed and endorsed by this office, dated January 26, 1995. Memorandum for

  1Deputization o f Members o f Congress As Special Deputy U.S. Marshals, 18 Op. O.L.C. 125 (1994).
  2 The Senator in question was also President Pro Tempore o f the Senate and Chairman of the Armed Services
Committee.


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the Deputy Attorney General, from Eduardo Gonzalez, Director, United States
Marshal Service, Re: Continued D eputation (Jan. 26, 1995) (“ Joint Memo­
randum ” ). In concluding that deputation of the congressional staff member would
not violate the separation of powers, the Joint Memorandum stated:

       The deputized staff person is not a Member of Congress and exer­
       cises no legislative power under Article I of the Constitution; nor
       would Congress (or any member thereof) have the authority to grant
       or revoke his appointment as a special DUSM, or to control or
       supervise his official duties as such.

Joint M emorandum at 2 (emphasis added).
  By letter dated February 27, 1995, to the USMS, the Sergeant at Arms of the
House has requested special deputation as a DUSM. In justification of the
requested deputation, the letter states in pertinent part:

         This letter would like to request special deputation to carry a
       weapon since I have been recently swom in as the Sergeant at Arms
       for the United States House of Representatives (House). As the
       Chief o f law enforcement, my duties involve the protection of
       House members, investigation of threats, enforcement of the com­
       mands o f the House, which includes the execution of arrest and
       search warrants, and the maintenance of order of the House, and
       other duties relating to the investigation and enforcement of the
       laws relating to Members of Congress and the general public.

   By memorandum to you dated March 31, 1995 (“ USMS Memorandum” ), the
Deputy Director o f the USMS has recommended against granting the requested
deputation. In so recommending, the USMS memorandum asserts that the deputa­
tion in question would raise constitutional separation of powers issues, stating:

       If he were deputized by the Marshals Service, he would use the
       additional authority from that deputation in furtherance of his duties
       as the Sergeant at Arms of the House of Representatives. Thus,
       the purpose o f his deputation would be concurrent with his duties
       as the House Sergeant at Arms. Since the House Sergeant at Arms
       remains in office subject to removal by the House of Representa­
       tives, 2 U.S.C. 83, the House, on its own initiative, could remove
       the Sergeant at Arms from the position which is intertwined with
       his deputation.

USMS Memorandum at 2.

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  In light of our prior opinions in this area, you have now requested our analysis
of whether the USMS is precluded on constitutional grounds from deputizing the
House Sergeant at Arms.

                                            II. ANALYSIS

  The House Sergeant at Arms is an Officer of the Congress. 2 U.S.C.
§ 60—1(b)(1). As part of his duties he is required

          to attend the House during its sittings, to maintain order under the
          direction of the Speaker, and, pending the election of a Speaker
          or Speaker pro tempore, under the direction of the Clerk, execute
          the commands of the House and all processes issued by authority
          thereof, directed to him by the Speaker.

2 U.S.C. §78.3 The HSA is subject to removal by the House of Representatives.
2 U.S.C. §83.
   It is evident that the HSA’s appointment as a DUSM for the purposes outlined
in his letter of request would entail unavoidable conflicts in accountability with
his duties and responsibilities as an Officer of the House. The letter makes it
clear that the deputation is sought for the purpose of facilitating the H SA ’s duties
to maintain order in the House and to enforce “ the commands of the House.”
In performing his duty “ to maintain order [in the House] under the direction
o f the Speaker,” 2 U.S.C. §78 (emphasis added), the HSA could not maintain
the accountability to the Director of the USMS, the Attorney General, and ulti­
mately the President, that is required of a DUSM. Such overlapping of congres­
sional and executive accountability is incompatible with separation of powers
requirements. See Bowsher, 478 U.S. at 726-32 (Comptroller General, who is “ an
officer of the Legislative Branch” and “ controlled by Congress,” cannot constitu­
tionally be permitted to execute the laws).
   Moreover, we believe that the proposed deputation of the House Sergeant at
Arms, like the deputation of a Member of Congress, would impermissibly involve
the institution of Congress in executive branch law enforcement. See id. at 7 2 6 -
31. In this context, we do not think the activities of the House Sergeant at Arms
for which deputation is sought can be separated from the institution o f Congress
for separation of powers purposes.
   The situation of the staff employee of a Senator whose re-deputation has been
recently approved by this office is distinguishable in several important respects.
Unlike the HSA, that person’s employment as a Senator’s aide did not involve
institutional duties to enforce order within the congressional sphere which could

  3 See also 2 U.S.C. §79, providing that, “ [t]he symbol of his [i.e., the HSA] office shall be the mace, which
shall be borne by him while enforcing order on the floor.”


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come into conflict with his accountability to the Attorney General as a DUSM.
As stated in the memorandum approving that deputation, neither Congress, the
Senate, nor any member thereof would have legal authority to control or supervise
his limited protective duties as a DUSM. The limited protective function for which
he was deputized is not subject to congressional supervision, whereas the HSA
seeks deputation in connection with the very activities as to which, by statute,
he is “ under the direction of the Speaker” and subject to “ the commands of
the House.” 2 U.S.C. §78.
   Additionally, we do not think that a staff employee of a Senator or Representa­
tive, who is not an Officer o f the Congress, see 2 U.S.C. §60-1 (b)(1), can be
equated with the institution of Congress for purposes of assessing the issue pre­
sented here. Unlike the HSA, his employment, duties, and removal are not con­
trolled by either House as an institution; rather, he is hired, supervised, and remov­
able at the discretion of a single Member.

                                                          RICHARD L. SHEFFRIN
                                                    D eputy Assistant Attorney General
                                                         Office o f L egal Counsel




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