Impermissibility of Deputizing the House Sergeant at Arms as

a Special Deputy U.S. Marshal

Appointment of the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlapping of 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 HSA’s status and statutory duties as an Officer of the House — 

which include maintaining order in the House under the direction of 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 separation 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 executing 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 of a U.S. Senator, for purposes of 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 (“ USMS” ) to you, 

reviewed and endorsed by this office, dated January 26, 1995. Memorandum for

1 Deputization of 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 of 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 Deputation (Jan. 26, 1995) (“ Joint Memorandum” ). 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 exercises 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 Memorandum 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 of law enforcement, my duties involve the protection of 

House members, investigation of threats, enforcement of the commands of 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 of the USMS has recommended against granting the requested 

deputation. In so recommending, the USMS memorandum asserts that the deputation 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 of 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 Representatives, 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 HSA’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 ultimately the President, that is required of a DUSM. Such overlapping of congressional 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 constitutionally 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 726- 

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 of 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 Representative, who is not an Officer of 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 presented here. Unlike the HSA, his employment, duties, and removal are not controlled by either House as an institution; rather, he is hired, supervised, and removable at the discretion of a single Member.

RICHARD L. SHEFFRIN 

Deputy Assistant Attorney General

Office of Legal Counsel

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