united-states separation-of-powers police-power
How are police powers subject to separation of powers?
<p>I recognized that finding a precise definition of police powers is a bit challenging. But, would it be reasonable to say that police powers are those powers of government reserved to the States by the 10th Amendment?</p>
<p>To what extent that police powers are permitted to Federal government agencies?   Are they limited to executive branch agencies? Are they limited to economic issues of interstate commerce?</p>
<p>Does the existence of a statute (<a href="https://www.law.cornell.edu/uscode/text/2/1966" rel="noreferrer">2 U.S. Code § 1966 - Protection of Members of Congress</a>) permit the U.S. Capitol Police to exercise police powers throughout the U.S.?   How does this statute fit within the concept of enumerated powers of the federal government?</p>

<p>I think you're being confused by two separate definitions of &quot;police power.&quot; The police power under the 10th Amendment has nothing to do with &quot;the police,&quot; i.e. people with guns and badges and uniforms who make arrests. It refers to the authority of a <em>government</em> to make rules for the general welfare. Police power is almost always exercised by the legislature, and when the executive exercises it (e.g. by issuing regulations) it's typically operating under conditions set by the legislature.</p>
<p>The United States has police power in a few situations: DC, federal property and territories, US-flagged ships on the high seas, etc. Outside of those situations, the United States instead has enumerated powers. Congress has a power to tax and spend to promote the general welfare, but otherwise it can only legislate to achieve one of the enumerated powers in the Constitution. Now, courts have read Congress's power to regulate interstate commerce very broadly, but there does need to be <em>some</em> relation to enumerated powers.</p>
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<p>You're asking about the Capitol Police, but they don't have &quot;police power&quot; in the 10th Amendment sense. They have the power to carry guns and to arrest people for crimes committed against the United States. This power is limited based on geography and/or the nature of their task; for instance, they have nationwide arrest powers &quot;[i]n the performance of their protective duties,&quot; but not when they're traveling outside DC on other official duties (e.g. to attend training).</p>
<p>While there's no litigation I can dig up that's <em>directly</em> on point, courts have repeatedly ruled that Congress has the power to do some not-entirely-legislative tasks in order to protect its own functions. For instance, in <em>Anderson v. Dunn</em> (1821), the Supreme Court upheld an inherent power of the House to hold private citizens in contempt of Congress for disobeying its subpoenas and for the Sergeant at Arms to arrest them and bring them before the House. It seems likely Congress would also have the authority to protect its own members from physical violence. The GAO <a href="https://www.gao.gov/products/b-317742" rel="noreferrer">did an analysis</a> when it was analyzing whether there was a constitutional problem with making Capitol Police IG personnel into special deputy US marshals, and it concluded that there was no issue with congressional employees exercising arrest powers in order to physically protect the legislative branch.</p>

<p>&quot;Police power&quot; is not the authority to send people out in blue uniforms with badges and guns to enforce the law. The Supreme Court defines it like this:</p>
<blockquote>
<p>The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety.</p>
</blockquote>
<p><a href="https://www.law.cornell.edu/supremecourt/text/197/11" rel="noreferrer"><em>Jacobson v. Commonwealth of Massachusetts</em>, 197 U.S. 11 (1905)</a>.</p>
<p>This often includes the authority to send out law enforcement with guns, but it also includes all manner of more mundane laws, such as establishing speed limits, building codes, and sewer systems.</p>
<p>In this sense, it is essentially fair to say that the Tenth Amendment reserves the police power to the states, as the federal government is not allowed to just make any law it thinks would be good for the public, though it may do so when they law is within the scope of one of us enumerated powers.</p>
<p>So the federal government may not exercise a general police power&quot; in the technical sense, but there is not really any vertical separation-of-powers issue when it creates a police force like the FBI or ATF, as long as those officers are staying within their jurisdiction and enforcing laws within their grant of authority, which could be to carry out any of the enumerated powers. This could mean addressing issues of interstate commerce, but it could also mean making sure no one besides the government is using currency (Secret Service), or that people are paying their taxes (IRS), or whatever else.</p>
<p>And because the enumerated powers actually belong to Congress, there is no horizontal separation-of-powers issue when Congress creates a police force to protect itself and enforce its own orders.</p>

<p><a href="http://law2.umkc.edu/faculty/projects/ftrials/conlaw/separationofpowers.htm" rel="nofollow noreferrer">This page</a> gives an overview of the essential legal issues regarding separation of powers. The peculiarity of the Capitol Police is that it is apparently &quot;under&quot; the legislative branch and not the executive branch, and might be challenged on the same basis as followed in <a href="https://supreme.justia.com/cases/federal/us/478/714/" rel="nofollow noreferrer">Bowsher v. Synar</a>, 478 U.S. 714 which found that</p>
<blockquote>
<p>Congress cannot reserve for itself the power of removal of an officer
charged with the execution of the laws except by impeachment...</p>
<p>The structure of the Constitution does not permit Congress to execute
the laws; it follows that Congress cannot grant to an officer under
its control what it does not possess</p>
</blockquote>
<p>The Capitol Police statutorily <a href="https://www.law.cornell.edu/uscode/text/2/1901" rel="nofollow noreferrer">reduces to the Capitol Police Board</a> and whoever they hire and fire. The interesting thing is that there is apparently nowhere in the US Code that says where that board comes from. §1901 was amended to strike that specification, previously including “, the members of which shall be appointed by the Sergeants-at-Arms of the two Houses and the Architect of the Capitol Extension”. The two houses have the authority to set their own rules, so they can select (and fire) their respective Sergeants-at-Arms (since the Capitol building is where the legislature does its business). However, the Architect of the Capitol is appointed by POTUS, with the advice and consent of the Senate. It thus seems extremely unlikely that a separation of powers challenge to the constitutionality of the CPB would be successful. Separation of powers seems to be a dead end.</p>
<p>Enumerated powers is a different argument, since Congress has assumed numerous powers that don't seem to be clearly assigned to the federal government. Congress can pass a law protecting the members of Congress and the members of their family, and they can pass a law authorizing the Capitol Police to perform such protections, just as they can pass a law <a href="https://www.law.cornell.edu/uscode/text/18/3056" rel="nofollow noreferrer">enabling the Secret Service</a> to protect POTUS, even when he is not in the Whitehouse.</p>
