                           Deputization of Members of Congress as
                               Special Deputy U.S. Marshals


T h e d e p u tiz atio n o f M em b e rs o f C o n g re ss as s p e c ia l D e p u ty U .S . M a rsh a ls is in c o n siste n t w ith s e p a ra ­
     tio n o f pow ers p rin c ip le s a n d w ith the sta tu to ry la n g u a g e an d h isto ric a l p ra c tic e g o v e rn in g s p e c ia l
     d e p u ta tio n .


                                                                                                                           May 25, 1994


                          M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l
                                            U n it e d S t a t e s M a r s h a l s S e r v ic e


   You have requested our assistance in determining whether the United States
Marshals Service may deputize Members of Congress as special Deputy U.S. Mar­
shals. The Director of the Marshals Service is authorized to deputize the following
individuals to perform the functions of Deputy Marshals: selected officers or em­
ployees of the Department of Justice; federal, state or local law enforcement offi­
cers; private security personnel to provide courtroom security for the Federal
judiciary; and other persons designated by the Associate Attorney General. 28
C.F.R. § 0.112; see also 28 U.S.C. § 561(f) (authorizing Director of Marshals
Service to appoint “such employees as are necessary to carry out the powers and
duties of the Service”).
   We believe that deputation of Members of Congress is inconsistent with separa­
tion of powers principles and with the statutory language and historical practice
governing special deputation.1 First, deputizing Members of Congress violates 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. The Marshals Service is clearly a part of the executive branch2
and the primary duties of Deputy Marshals are the execution and enforcement of
federal law. See Steele v. United States, 267 U.S. 505, 508 (1925) (deputy mar­
shals are “chiefly charged with the enforcement of the peace of the United States”);
 United States v. Krapf, 285 F.2d 647, 649 (3d Cir. 1960) (duties of marshals in­
clude the “enforcement, maintenance and administration of federal authority”); 28
U.S.C. § 566 (describing the duties of the Marshals Service). Permitting Members
of Congress to execute and enforce the laws encroaches upon the very heart of the
executive authority and violates one of the fundamental tenets of separation of



   1 Because we think that (he result is clear un d er a separation o f pow ers analysis, we d o not address the
argum ent that special deputation o f M em bers o f C ongress is invalid under the Incom patibility C lause
   * T he United States M arshals Service is a bureau w ithin the D epartm ent o f Justice and under the authority
and direction o f the A ttorney G eneral. 28 U S C !) 561.

                                                                      125
                          Opinions o f th e Office o f L eg a l C ounsel


powers jurisprudence: “The structure of the Constitution does not permit Congress
to execute the laws.” Bowsher v. Synar, 478 U.S. at 726.
   Members of Congress presumably request special deputation so that they may
carry weapons for personal security and not so that they may actually execute or
enforce the law. Nonetheless, deputized Members of Congress will have statutory
authority to enforce the law. Moreover, the fact that a legislative usurpation of
executive power may prove to be innocuous or inchoate does not mean that it is
constitutionally permissible. Legislative intrusions into the executive sphere that
may prove harmless in practice nonetheless violate separation of powers principles.
See M etropolitan Washington Airports Auth. v. Citizens fo r the Abatement o f Air­
craft Noise, Inc. 501 U.S. 252 (1991): Bowsher, 478 U.S. 714. “The separated
powers of our Government cannot be permitted to turn on” speculative assessments
about the likelihood of a legislative official actually exercising usurped executive
authority; “in the long term, structural protections against abuse of power [are]
critical to preserving liberty.” Bowsher, 478 U.S. at 730.
    Deputation of Members of Congress, furthermore, is not authorized by the stat­
ute and regulations governing special deputation. 28 U.S.C. § 561(f) states that the
Director of the Marshals Service may appoint “such employees as are necessary to
carry’ out the pow ers and duties o f the Service.” (emphasis added). Similarly, 28
C.F.R. § 0.112 provides that the Director may deputize certain persons “to perform
the functions of a Deputy U.S. Marshal.” Both the Marshals Service and this Of­
fice have repeatedly taken the position that the use of the special deputation
authority should be limited to those circumstances where the United States Marshal
needs the deputations in order to accomplish his or her specific mission. See Spe­
cial Deputations o f P rivate Citizens Providing Security to a Former Cabinet
Member, 1 Op. O.L.C. 67 (1983) (concluding that Marshals Service could not
deputize Henry Kissinger’s private security service); Memorandum for the Attor­
ney General, from John M. Harmon, Acting Assistant Attorney General, Office of
Legal Counsel (Mar. 28, 1977) (advising that it would be unlawful for the Mar­
shals Service to deputize former Vice President Rockefeller’s security detail). The
Marshals Service does not need Members of Congress to serve as deputy marshals
in order to perform its assigned functions; indeed, Members of Congress cannot
perform the functions of the Marshals Service without running afoul of separation
of powers principles.
   It is therefore our conclusion that the Marshals Service cannot continue to grant
requests from Members of Congress for special deputation.


                                                        WALTER DELLINGER
                                                      Assistant Attorney General
                                                       Office o f Legal Counsel



                                             126
