Authority of Foreign Law Enforcement Agents to Carry Weapons in the United States ( 1988 )

Authority of Foreign Law Enforcement Agents to Carry Weapons
in the United States
N o federal statutes generally authorize foreign law enforcem ent agents to carry firearm s in the U nited
States. In particular, 18 U.S.C. § 951 does not provide such authority.
A bsent congressional consent, the E m olum ents Clause precludes foreign agents from enforcing fed­
eral laws. 19 U .S.C. § 1401(i) does not constitute such consent.
T he President does not possess inherent authority to designate foreign agents to carry firearm s in the
U nited States in order to enforce federal law.
April 12, 1988
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 s s is t a n t A t t o r n e y G e n e r a l
C r im in a l D iv is io n
This memorandum is in response to your request for our opinion as to the ex­
istence of any basis in federal law for a United States law enforcement agency to
authorize foreign law enforcement agents to carry firearms within the United
States. You also requested that we consider 18 U.S.C. § 951 and 19 U.S.C.
§ 1401(i) in connection with this issue. 18 U.S.C. § 951 requires those who act
as agents of foreign governments to notify the Attorney General; 19 U.S.C. §
1401(i) authorizes the Treasury to designate persons as customs agents, who may
then as customs agents carry firearms to enforce the customs laws. First, to our
knowledge, no statute generally authorizes foreign law enforcement agents (“for­
eign agents”) to carry firearms in the United States. In particular, 18 U.S.C. § 951clearly does not provide such authority, because it simply requires those who act
as agents of a foreign government to notify the Attorney General. Second, in the
absence of the consent of Congress, the Emoluments Clause of the United States
Constitution precludes foreign agents from exercising authority to enforce fed­
eral law. 19 U.S.C. § 1401(i), which authorizes the Secretary of the Treasury to
designate individuals to enforce the customs laws, and thus to carry weapons,
does not constitute such consent. Finally, the President does not possess inher­
ent authority to designate foreign agents to carry firearms in order to enforce fed­
eral law.1
1 We do not address the authority o f foreign agents to possess firearms under state law. We are aware of no fed­
eral law that would prevent the states from authorizing the carrying o f firearms by foreign agents. We also have not
addressed the rights or obligations of the United States in connection with any treaties to which it is a parly. This
memorandum also does not consider the sharing o f law enforcement information, or similar forms of cooperation,
between United States and foreign law enforcement officials, and the conclusions set forth herein do not preclude
such cooperation. As our analysis reveals, assuming that foreign agents are not designated as United States officers
and do not exercise law enforcement powers on behalf o f the United States, cooperation would not by itself render
a foreign law enforcement agent an officer o f the United States and thus subject to the Emoluments Clause.
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Analysis
/. Federal Statutes Authorizing Foreign Agents to Carry Firearms
To our knowledge no law authorizes foreign agents to carry firearms. In par­
ticular, 18 U.S.C. §951 does not represent such authorization. Section 951 merely
requires that persons who act as agents of a foreign government notify the At­
torney General. Section 951(b) authorizes the Attorney General to promulgate
“rules and regulations establishing requirements for notification.” Nothing in the
text or legislative history of the statute suggests that it provides a basis in federal
law for the Attorney General to permit foreign agents to carry firearms.
II. Federal Statutes Authorizing Designated Persons to Enforce
Federal Law
It has also been suggested that other statutes, such as 19 U.S.C. § 1401 (i), that
permit the federal government to designate persons to enforce federal laws, may
authorize foreign agents designated under these statutes to carry firearms. Be­
cause we believe that the Emoluments Clause precludes the designation of for­
eign agents to enforce federal law in the absence of congressional consent, we
do not believe that section 1401 (i), or any other statute that we have examined,
can be used to authorize foreign agents to carry firearms.
The Emoluments Clause prohibits federal officers from receiving a variety of
benefits from foreign governments in the absence of the consent of Congress.
The Clause provides in part:
[N]o Person holding any Office of Profit or Trust under them [the
United States], shall, without the Consent of the Congress, accept
of any present, Emolument, Office, or Title, of any kind whatever,
from any King, Prince, or foreign State.
U.S. Const, art. I, § 9, cl. 8. This clause, adopted unanimously at the Constitu­
tional Convention of 1787, was intended by the Framers to preserve the inde­
pendence of officers of the United States from corruption and foreign influence.2
The Emoluments Clause must be read broadly in order to fulfill that purpose.
Accordingly, the Clause applies to all persons holding an office of profit or trust
under the United States, and not merely to that smaller group of persons who are
deemed to be “officers of the United States” for purposes of Article II, Section 2
o f the Constitution.3 Thus, a part-time staff consultant to the Nuclear Regulatory
2 3 The Records o f the Federal Convention o f J787, at 327 (Max Farrand ed., 1966).
3 Letter for Janies A. Fitzgerald, Assistant General Counsel, United States Nuclear Regulatory Commission,
from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel at 3-5 (June 3, 1986) (“Fitzgerald
letter”).
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Commission, an assistant director of a division within the National Archives, and
a postal cleric have all been recognized as occupying an “office of profit or trust”
for purposes of the Emoluments Clause.4 As a matter of general principle, any­
one exercising law enforcement powers on behalf of the United States must be
viewed as holding an office of trust under the Emoluments Clause. Federal law
enforcement agents, by the nature of their office, are frequently granted an array
of powers that are denied to the private citizen; in turn, citizens look to such of­
ficers to perform a host of dangerous but necessary tasks to the best of their abil­
ity and with undivided loyalty to the United States.5
These same characteristics of office— the reposing of trust, the importance of
the task performed by those who hold the office, the necessity for undivided loy­
alty— have been cited in other contexts in support of a determination that an of­
fice is an “office of profit or trust” under the United States for purposes of the
Emoluments Clause.6 Moreover, as the text of the Emoluments Clause suggests,
one can hold an “office of trust” for purposes of the Emoluments Clause even if
the office entails no compensation. 15 Op. Att’y Gen. 187, 188 (1877) (members
of Centennial Commission who receive no compensation may nonetheless hold
“offices of trust” under the Emoluments Clause). Accordingly, those who pos­
sess federal law enforcement powers, whether paid or unpaid, hold offices of trust
under the United States. It is equally clear that foreign law enforcement agents
are in the position of receiving or expecting to receive “emoluments” from their
own governments: salary and pension benefits, among many other potential
“emoluments.” At a minimum, it is well established that compensation for ser­
vices performed for a foreign government constitutes an “emolument” for pur­
poses of the Emoluments Clause.7
Therefore, any foreign agent authorized by the federal government to enforce
federal law would hold an office of trust under the United States, while at the
4 Fitzgerald letter; Applicability o f Emoluments Clause to Proposed Service o f Government Employee on C om ­
mission o f International Historians, 11 Op. O.L.C. 89 (1987); 27 Op. Att’y Gen. 219 (1909)
5 See also Foley v. Connelie, 435 U.S 291, 299-300 (1978)
6 E.g., Fitzgerald letter at 5
7 Fitzgerald letter at 2 n.2.
To the extent that a Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, to Dudley H. Chap­
man, Associate Counsel to the President, May 10, 1974, suggests at page 4 that the appointment of a foreign offi­
cial to an office o f profit or trust under the United States may raise only a limited concern under the Emoluments
Clause because “the fact o f foreign service would be known to the appointing official and could therefore be eval­
uated in connection with the duties required by the contemplated appointment,” we disagree As an initial matter,
we find no support in the words o f the Constitution for any such limited concern The Emoluments Clause by its
terms erects a prohibition against the receipt o f benefits from foreign governments: that prohibition may only be
avoided with the consent o f Congress. There is no further provision that the Emoluments Clause does not apply to
foreign officials who are offered offices of profit or trust under the United States, or when the receipt o f the foreign
emolument is known beforehand The sole test is, again, whether Congress has consented or not.
Moreover, even were some argument to be made that in this case a foreign agent can be deemed to have “ac­
cepted” his foreign emolument prior to becoming an officer o f the United States, and thus should escape the pro­
hibition of the Emoluments Clause, it would nonetheless be clear that such an agent would be in a position of ex­
pecting to receive future “emoluments” from a foreign government. The express terms of the Emoluments Clause
clearly would apply to such a situation, and equally clearly would forbid the creation o f such divided loyalties.
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same time receiving emoluments from a foreign government. The divided loy­
alty thus produced by such an authorization is prohibited by the Emoluments
Clause, absent the consent of Congress.8 None of the statutes that we have re­
viewed constitutes such consent.
As described in your memorandum, it is evidently the practice of the Customs
Service to designate foreign law enforcement officers as customs agents, under
19 U.S.C. § 1401 (i), thereby permitting them— as customs agents— to carry
firearms in the United States.9 Assuming that the Customs Service is observing
the requirements of 19 U.S.C. § 1401(i) that the Secretary of the Treasury (or his
delegate) make such a designation, its use of section 1401 to designate individ­
uals who are not beholden to foreign governments as customs agents would be
lawful. Section 1401(i) has been upheld repeatedly as a basis for designating bor­
der patrol officers as customs agents, thereby extending to the border patrol the
broader search and seizure powers of customs agents. E.g., United States v. Mc­
Daniel, 463 F.2d 129, 130 (5th Cir. 1972), cert, denied, 413 U.S. 919 (1973);
United States v. Thompson, 475 F.2d 1359, 1362-63 (5th Cir. 1973).
Extending section 1401 to the designation of foreign agents, however, would
violate the Emoluments Clause. The designated foreign agents would become
customs agents of the United States, yet customs agents occupy positions of trust
to which special powers have been granted and which require undivided loyalty
to the United States. Customs agents, therefore, including designated customs
agents, hold “offices of profit o r trust” within the meaning of the Emoluments
Clause. A foreign agent designated as a United States customs agent, however,
would simultaneously be expecting “emoluments”— for example, his pay— from
a foreign government.10 Accordingly, designating a foreign agent who expects
pay from his foreign government as a United States customs agent runs afoul of
the Emoluments Clause.
Moreover, section 1401 by itself cannot be held to constitute the consent of
Congress necessary to exempt foreign agents from the Emoluments Clause pro­
hibition. As noted above, section 140 l(i) occurs in a list of statutory definitions,
and simply provides that “any . . . other person” may be designated as a customs
agent. The statute does not specifically address the designation of foreign law en­
forcement agents as customs agents. When Congress has granted its consent to
the receipt of foreign emoluments by federal officers, it has done so explicitly.
Thus, the Foreign Gifts Act provides in so many words that “Congress consents”
to federal employees accepting gifts “of minimal value,” tendered by a foreign
government as a “mark of courtesy.” 5 U.S.C. § 7342(c). Similarly, 5 U.S.C.
8 Fitzgerald letter at 6-7.
9 Section 1401(i), which appears in a list o f statutory definitions, provides:
The terms “officer o f the customs” and “customs officer” mean any officer o f the United States
C ustom s Service o f the Treasury Department (also hereinafter referred to as the “Customs Service”)
o r any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person au ­
thorized by law or designated by the Secretary o f the Treasury to perform any duties o f an officer o f
the Custom s Service.
10 See text accompanying note 7, supra
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§ 7342(d) provides that “Congress consents” to federal employees accepting dec­
orations offered by foreign governments. While the consent of Congress may be
expressed without invoking the words “Congress consents,” a statute must
demonstrate through its text or purpose that Congress intended to consent to the
holding of specific offices by those receiving foreign emoluments. Only through
such an affirmative legislative decision may the Constitution’s requirement of
consent be satisfied. There is, however, no such indication of consent reflected
in the text or purpose of section 1401 (i).11 Another statute which, on its face, is
similar to section 1401 (i) is 28 U.S.C. § 533. That statute provides that the At­
torney General may appoint officials “to conduct such other investigations re­
garding official matters under the control of the Department of Justice and the
Department of State as may be directed by the Attorney General.” The accom­
panying Historical and Revision Notes state that such officials are to have “the
authority necessary to perform their duties.” The argument could be made that
the Attorney General could appoint a foreign agent to serve as a federal inves­
tigative official under this statute, and that if it is necessary for such an official
to carry firearms in order to perform his duties, he would be accordingly em ­
powered to do so. Similarly, 18 U.S.C. § 3053, which grants to U.S. Marshals
and their deputies the power to carry firearms, could be seen as a vehicle for dep­
utizing foreign law enforcement agents. For the reasons stated above, however,
the Emoluments Clause would appear to preclude the use of these statutes to ap­
point a foreign agent as a federal “investigative official,” or as a deputy U.S. M ar­
shal. Neither statute contains or reflects the consent of Congress necessary to
avoid the Emoluments Clause.
III. Application o f the Emoluments Clause to the President’s Inherent
Authority
The President does not have inherent authority to authorize foreign law en­
forcement officers to carry firearms in the United States. As set forth below, any
attempt to invoke the President’s inherent authority to designate agents to en­
force federal law would pose the same Emoluments Clause problem discussed
above. Because Congress would have to consent to such a designation, the Pres­
ident has no authority to make such designations without Congress’ consent. The
President has broad inherent authority to enforce federal law under the Consti­
tution. That inherent authority is based upon the President’s position as chief ex­
ecutive, his responsibility for the conduct of foreign affairs, and his obligation to
“take Care that the Laws be faithfully executed.” U.S. Const, art. II, § § 1 , 2 and
3; In re Debs, 158 U.S. 564, 581-82 (1895); In re Neagle, 135 U.S. 1, 63-68
(1890); Memorandum for Robert E. Jordan III, General Counsel of the Depart­
' 1 Moreover, had Congress intended to consent to the designation o f foreign agents as armed custom agents, it
would presumably also have addressed the number o f other statutory problems that such a designation would pre­
sent. Such problems may include the requirement under 5 U.S C § 3331 that appointees to the civil service take an
oath of loyalty to the United States.
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ment of the Army, from William H. Rehnquist, Assistant Attorney General, Of­
fice of Legal Counsel, Re: Authority to Use Troops to Protect Federal Functions,
including The Safeguarding o f Foreign Embassies in the United States at 1-2
(May 11,1970) (inherent authority provides basis for using federal troops to pro­
tect foreign embassies); Memorandum for Wayne B. Colburn, Director, United
States Marshals Service, from Leon Ulman, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Law Enforcement Authority of Special Deputies As­
signed to DOT to Guard Against Air Piracy at 1-3 (Sept. 30, 1970) (inherent au­
thority may be invoked to appoint sky Marshals with enforcement powers). The
President’s inherent authority, however, is of course circumscribed by the spe­
cific provisions of the Constitution. United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 320 (1936). As discussed above, foreign agents enlisted to help
enforce the laws of the United States will be exercising federal law enforcement
authority within the United States, regardless of what title they carry; their fed­
eral function alone will suffice to make them officers of the United States for pur­
poses of the Emoluments Clause. Because Congress must consent to the holding
of office by foreign agents, the President does not have the inherent authority to
designate foreign agents to enforce federal law.
Conclusion
For the reasons stated, we do not believe that any federal law to which you
have directed our attention authorizes foreign agents to carry firearms. Nor does
the President have inherent authority to authorize foreign agents to carry firearms
in order to execute federal law.
John O. M c G in n is
Deputy Assistant Attorney General
Office of Legal Counsel
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