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In the comments of another answer, Grovkin and I discussed the power of the US president. In a reply I received, it was stated that the US president is the ultimate-enforcement officer:

@JJJ it gives the US the power to request such an investigation. The President, as the head of the executive branch, is the ultimate law-enforcement officer. Enforcing the law is the same as executing the law. Given that this was a discussion about potential corruption at the highest levels of the US government, the President could potentially try to keep the circle of people involved as small as possible. All departments of the executive branch exist to enable the President to do his job. A US President is the Executive actual. Everyone else (except VP) is delegated President's authority.

This seems rather weird to me because of the separation of powers. Is it true that the US president is the ultimate law-enforcement officer, and if so, what does that mean? Where is that power delegated to the president and what does it entail?

I found the Wikipedia page on Powers of the president of the United States but it doesn't use the term law-enforcement officer. The closest to it seems to be executive powers, but it's rather vague as to what that entails with respect to the judiciary.

grovkin
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JJJ
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    @Fizz here they talk about the president executing the law. Still not sure what it means, it's a very long text but I think it may be easier to go through for someone with a background in constitutional law / history. – JJJ Sep 30 '19 at 20:19
  • Frankly it's probably better if you ask this question on law.SE. From the source you found, the situation is probably complex "Professor Krent has argued that there was a lack of "'centralized control within the executive branch over criminal law enforcement." Harold J. Krcnt. Executive Control over Criminal Law Enforcement, 38 AN,. U. L. REV. 275, 286 (1989). Following Leonard White's lead. Krent notes that the Attorney General lacked supervisory authority and that the Secretary of State assumed "titular responsibility" for supervising district attorneys." – the gods from engineering Sep 30 '19 at 20:23
  • @Fizz its context is mostly political though as it is about the president of a country. The answer might not lie in law, it may have been established through convention. – JJJ Sep 30 '19 at 20:25
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    Related question here: https://politics.stackexchange.com/questions/42357/can-a-us-president-have-someone-sent-to-prison In particular see this answer: https://politics.stackexchange.com/a/42361/18373 – the gods from engineering Sep 30 '19 at 20:29
  • @Fizz thanks, that seems to answer the question, but lacks supporting evidence on why the president isn't a law-enforcement officer. I guess it's as simple as finding a source to support the statement or reasoning that the president isn't a law-enforcement officer. – JJJ Sep 30 '19 at 20:40
  • I have removed the "judicial-branch" tag because law enforcement is not part of the functions of the judicial branch in the US. – grovkin Oct 01 '19 at 21:54
  • Wouldn't that violate trias politica on which modern democracies (since napoleon) are based? – paul23 Oct 02 '19 at 10:32

5 Answers5

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The President of the United States of America is the head of the State and Head of Government, and thus presides over the cabinet of the United States. The Constitution states in Article II, Section 3, Clause 5 (Faithful Execution Clause or Take Care clause) holds that the President must "take care that the laws are faithfully executed".

Typically the unofficial title of "top law enforcement officer of the United States" is given to the U.S. Attorney General, who is the head of the Department of Justice (DoJ) which includes various departments related to criminal prosecution of federal crime, and the most famous agency within is the Federal Bureau of Investigation, the principal federal law enforcement agency (there are others, but their functions are more niche. For example, the Coast Guard is a maritime law enforcement agency and the U.S. Secret service has specific tasking related to financial crimes and VIP protection). The DoJ is considered one of the "Big Four" of the US cabinet, being one of the oldest departments and one of the oldest departments (the other three are State, Defense (Name's been changed over time, but it's the same department, and Treasury). However, the Attorney General serves at the pleasure of the President which means that the AG is nominated by the President, but he can also fire the AG for just about any reason given.

All Cabinet level departments and all agencies below them derive their law enforcement power from the President's powers and duties outlined in the Constitution under the aforementioned Article II, Section 3, Clause 5. Congress has no law enforcement ability in the United States save for the Capitol Police, which is charged with policing the U.S. Capitol building and legislative offices and congressional protection and is limited to a jurisdiction of 200 blocks outside of the Capitol operating jointly with U.S. Park Police (federal) and D.C. Metropolitan police (local, and only agency who can close roads in D.C. Even the Secret Service has to ask to close roads for the President's motorcade), and the Judiciary has no ability to enforce laws.

This means that in the United States, most law enforcement is an executive function of the government, and thus, the responsibility of the Executive officer and his staff. For Federal Law Enforcement, the officer is the President of the United States. That said, most ordinary citizens will not deal with the President's men as there is a specific DoJ policy that defers most crimes to the state and will not prosecute a state crime as a federal crime, regardless of outcome, unless very specific conditions are met. This allows the Federal law enforcement agencies to focus on doing their job well and they are ridiculously successful. The good news is, it's unlikely that you will ever deal with the DoJ in the course of your life. The bad news is, if you're the target of their investigation and they say you did something, I wouldn't lay odds on you being found not guilty of what they accused you of.

Ludi
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hszmv
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    "being one of the oldest departments and one of the oldest departments": I'd edit, but it's not clear what you actually meant to say. Also, the president's law enforcement powers are not all constitutional. Some are statutorily delegated by congress, and some law enforcement powers are delegated by statute directly to the AG or other cabinet secretaries. It's not clear that this has any practical implication, but it's true nonetheless. – phoog Oct 01 '19 at 15:21
  • "the judiciary has no ability to enforce laws" is a bit misleading unless you define "enforce": only the judiciary can authorize the punishment of an individual for a criminal violation. Also, like the legislative branch, the judiciary employs armed police officers, the US Supreme Court Police. – phoog Oct 01 '19 at 15:28
  • I also note that the DoJ was founded in 1870. Any claim it has to be among the oldest departments has to go back to the Office of the Attorney General that preceded it. – phoog Oct 01 '19 at 18:06
  • @phoog: As the AG serves at the pleasure of the President, if there is a disagreement, the president can fire the AG. And as noted by the DoD having been DoW (war) I was accounting for name changes to apartment. The judiciary comment is wrong. The lack ability of SCOTUS to enforce it's ruling against Andrew Jackson's policies was why the Trail of Tears happened anyway. Judiciary interprets the law. In the states, they don't even decide guilt unless the defense waives the right to Jury. – hszmv Oct 01 '19 at 19:32
  • Small, but vital nitpick. There is no Head of the Government in the US. A President is a head of state, but the fact the US has 3 co-equal branches of the government means that there can be no head of the government as a person or even as a concept. This confusion comes from the British English usage of "head of the government" translating into the American usage as "head of the executive branch" in the US. In fact the British "government" is what's called "the executive branch". As always, 2 countries separated by a common language. – grovkin Oct 01 '19 at 20:33
  • Yes, the president can fire the AG, but that doesn't mean that the president can personally exercise powers, duties, or responsibilities of the AG; he can only replace him with someone else. As to "enforce," I stand by my comment: it may or may not be true depending on the definition of "enforce." Just as the judiciary has no physical power to put a person in prison, nobody in the executive branch has legal power to do so unless it has been ordered by a judge. – phoog Oct 01 '19 at 21:02
  • @grovkin "head of government" is commonly defined as the officer who directs the executive functions of a country's government. By that definition, the president of the US is in fact the head of government. This use does not stem from the UK use as you allege, but rather the other way around. "Government" originally denoted the business of governing, not any group of people or offices. The person who was in charge of governing was the "head of government." The word "government" was later reinterpreted as denoting the head's subordinates. – phoog Oct 01 '19 at 21:21
  • @phoog it does not mean that in the US. Again, that's the British usage because in the British usage "the government" is what is called "the executive branch" in the US. – grovkin Oct 01 '19 at 21:22
  • @phoog the fact that a President can fire an AG, in fact, is not the reason that a President can exercise all duties of the executive branch. Article II Section 1 "the power of the executive branch shall be vested in the President" does mean that a President can exercise all powers of the executive branch. Every employee of the executive branch is a President's deputy. They cannot exercise any authority unless that authority is delegated to them by a President. A President cannot delegate any authority which he himself does not have. – grovkin Oct 01 '19 at 21:25
  • @grovkin That's not entirely correct. Congress can grant and does grant specific powers to specific subordinates of the president, and the president cannot take those powers away. Those subordinates therefore exercise authority that has not been delegated to them by a president. The first argument in that comment seems to have merit, but one can also argue that because it is the president's duty to take care that the laws be faithfully executed, he must abide by a law such as the one that reserves the conduct of litigation to DoJ officers. – phoog Oct 01 '19 at 21:45
  • @phoog it is entirely correct. Congress can establish various offices which assist a President in his functions. Congress cannot strip a President of the ultimate authority over those functions though. Please, stop you attempts to misinform those who may actually use this site to try to learn about the government. – grovkin Oct 01 '19 at 21:47
  • The president's ultimate authority over those functions lies in his ability to hire, direct, and fire those who exercise them, not to take over their performance personally if there is a statutory prohibition on doing so. Further discussion in the chat, please. – phoog Oct 01 '19 at 22:01
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    @grovkin: Head of Government is a specific role in government that is largely defined by the nation, but is usually the office that heads the cabinet. In the UK, the role is head by the Prime Minister. Head of State is a more ceremonial head that is usually represents the people of a nation on a foreign stage. In the UK, this is the Monarch. In the United States, these functions were both given to the President. Compare the powers of the U.S. President and Speaker of the House with the Prime Minister of the UK (who is the same parliamentary function of the Speaker.) – hszmv Oct 02 '19 at 12:57
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I think this can be answered much more concisely. It's a bit longer than I'd like, but much of the material comprises quotations of statute law.

This seems rather weird to me because of the separation of powers.

Law enforcement is a function of the executive branch; the president is the head of the executive branch. The president, therefore, is at the top of the chain of command of any federal law enforcement officer, apart from the small forces employed by the judicial and legislative branches, as noted elsewhere. But if even those forces arrest anyone for the commission of a crime, the prosecution is effected by the Department of Justice, under the authority of the attorney general, and, therefore, the president.

(In the adversarial court system, the executive represents the United States before the judiciary, which is, of course, separate.)

Is it true that the US president is the ultimate law-enforcement officer, and if so, what does that mean?

It means that the attorney general answers to the president. But in fact, it's arguably an overstatement of the president's role in law enforcement. There does not appear to be anything in US law that would allow the president to represent the US in court, and 8 USC 516 (linked and quoted below) would seem to prohibit it. Similarly, the authority to investigate crimes, carry weapons, and effect arrests are specifically delegated to departments or their officials; see below.

Where is that power delegated to the president and what does it entail?

It isn't. It's delegated to the attorney general, at 28 USC 515(a):

The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

The following section, 8 USC 516 is also of interest:

Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

The authority to investigate and prosecute crimes is also delegated directly to the attorney general, or, more precisely, delegated directly to certain of the AG's subordinates, at 28 USC 533:

The Attorney General may appoint officials—
(1) to detect and prosecute crimes against the United States;
...

Authority to carry weapons and make arrests is delegated directly to officials below the attorney general, for example at 18 USC 3052 for the FBI. I do not see a corresponding statute for the attorney general, much less the president:

The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.

You will find similar statutes that also apply to officers who are not below the attorney general. For example, immigration enforcement is now under the secretary of homeland security. Law enforcement in national parks and forests is under the secretaries of the interior and agriculture, and so on.

In conclusion, I would note that some people will turn to an explicit definition of the term law enforcement officer in some law or other and then try to argue whether or not the president falls under that definition. This approach is misplaced, because statutory definitions have limited scope, and they do not generally apply to statements made in other contexts.

phoog
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    In order for 28 USC 515(a) to prohibit a President from representing the US in court, it would have to make this authority exclusive to the AG. As in "...AG and only AG may...". As it stands, it simply authorizes an AG. It imbues AGs with such authority. It does not indicate that a President, as the Executive Branch, may not exercise this authority. – grovkin Oct 01 '19 at 20:38
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    @grovkin 28 USC 516, however, does in fact limit that activity to officers of the DoJ under the direction of the AG. On its face, that excludes the president. – phoog Oct 01 '19 at 20:50
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    Ok, this is something like saying that the fact that the Secretary of State will be point person for conducting foreign policy implies that a President cannot get involved in the foreign policy. You are insisting that the job description of a subordinate implies that their boss may not ask them to step aside while he performs this job function himself. All that 516 states is one of the job functions of AG. It doesn't concern itself with the President, because a President doesn't need authorization to perform this job function. It's his by the virtue of being President. – grovkin Oct 01 '19 at 20:59
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    And I am sorry, but the idea that a President may not carry arms (if he so choses) is beyond ludicrous. He has the ability to launch (not to order launch, but to launch) nuclear weapons. I don't mean to be rude, but sometimes people say things which completely ignores perspective and they completely lose the sight of the forest for the trees. I am sorry if I don't have the words to put this in kinder terms at the moment. – grovkin Oct 01 '19 at 21:02
  • You are probably correct that a President is not a law enforcement officer. This is a term with a formal definition, from what's been discussed somewhere else on SE. But he is still the chief law enforcement individual. – grovkin Oct 01 '19 at 21:06
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    The President is not the head of the executive branch. "The power of the executive branch is vested in the President." (Article II Section 1) Calling him the head of the executive branch is like saying that senators are in charge of the Senate. They are not. They are the Senate. Senate's Sergeant at Arms works for the Senate. Senators do not. Everyone (except VP) in the executive branch works for the executive Branch. The President does not. He is the executive branch actual. – grovkin Oct 01 '19 at 21:18
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    @grovkin your Secretary of State analogy doesn't hold up, because there is a difference between "point person" and explicit delegation. The president's foreign policy duties are explicitly delegated in Art II(3) of the constitution. Section 516 does more than state a job function of the AG; it explicitly prohibits those who are not officers of the DoJ from conducting litigation. And well it should: the current president is no lawyer and wouldn't stand a snowball's chance in a very hot place if he tried to take a case to court. – phoog Oct 01 '19 at 21:29
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    whether or not it "should" is an entirely different consideration from whether or not it does. It cannot strip a President of his executive authority without explicitly saying so. The Constitution gives him this authority. To strip him of such authority would, at the very least, require legislature which can survive a SCOTUS challenge. In the absence of such explicit language (stripping the President of this particular executive authority), you can assume that he retains it and would without a doubt challenge (in court) any attempts to curtail it if it ever became an issue. – grovkin Oct 01 '19 at 21:33
  • @grovkin your argument about "vest" is also unconvincing. The word "vest" means to be "clothed": that phrase means nothing more than that the president is given the executive power. That doesn't stop him from being the head of the executive branch. He certainly cannot be said to be the executive branch, which in fact comprises millions of people. – phoog Oct 01 '19 at 21:36
  • Let us continue this discussion in chat. – phoog Oct 01 '19 at 21:37
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    the fact millions of people who work for the executive branch are called the executive branch is mostly a linguistic convenience. They are employees of the branch. "Vest" doesn't mean "cloak" here. It's vest as in "invest". The other way to put it is that the President is imbued with the authority of the executive branch. It is with him (or her if it ever comes to that). The same way as everyone officiating a wedding always says "by the power vested in me by the state of whatever..." They are not clothed in this power. They contain this power. – grovkin Oct 01 '19 at 21:39
  • @grovkin I don't want to get into this too much again, since each of us knows where the other stands, but I noticed another point that I failed to make: the attorney general, department secretaries, and their subordinates are not mere employees of the executive branch; they are officers of the executive branch who wield delegated power and have the authority to act as agents of the federal government in certain matters. They are indeed components of the executive branch. If the president were the only member of the executive, we wouldn't need the word "branch." – phoog Feb 18 '20 at 21:23
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Federal Level

At the Federal level, the thinking that the President is the ultimate law enforcement officer holds true in most circumstances because of the theory of the Unitary Executive, which holds that all executive power is vested in the President, and and his/her discretion is ceded to functional officers and underlings. But it's through the vesting of executive power, and Presidential discretion that officers can wield this power. What can be discretionarily given can be, at the President's discretion, need not even be reclaimed, because it's never fully given.

The Vesting Clause of Article II provides, "The executive Power [of the United States] shall be vested in a President of the United States of America." Proponents of the unitary executive theory argue that this language, along with the Take Care Clause ("The President shall take care that the laws be faithfully executed ..."), creates a "hierarchical, unified executive department under the direct control of the President."

and

Proponents of a strongly unitary theory argue that the president possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch.[3]

State Level

At the state level, barring Federal Preemption due to the Supremacy clause and case law, federalism considers the States to be the supreme. Whether the governor or attorney general in those instances would hold the post, would be determined by the nature of the State's constitution if they held a "plural executive".

But in the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds.

Who is the Head Honcho?

So we have two conflicting spheres of influence, although where they overlap, the Federal level is usually supreme. However, no discussion of this would be complete without a discussion on the People's right to "alter or to abolish (their government)it, a natural right elucidated in the Declaration, and adopted as part of the Natural Laws of the US. This natural right was further ensconced in Article 4 Section 4 of the Constitution on what "Republicanism" means. This means, as far as crimes committed by the State onto the people, the people are firmly in charge.

The Founding Fathers reached consensus that republicanism contains a provision to abolish and reform the government under new foundational laws. The means to do so exist through amendment, Convention or revolution, and the authority to do so resides in the people. For more on this topic I refer you to The Federalist Papers, No. 28, for the right to revolt, number 6 in the list below, and Fed 39 for the rest.

While there are 7 small "r" republican principles that came out of the Constitution ratifying process, undefined but assumed in Article 4 of the Constitution I am only listing the one relevant to the point on revolution:

6. The government acknowledges the final right of the People to alter or abolish it whenever it usurps the rights for which it was instituted by the People to administer God’s Law.

Rick Smith
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  • It's vexing that this answer has received two downvotes without any comment. I would be interested to know downvoters' reasons for downvoting. – phoog Oct 01 '19 at 17:38
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    Yeah. There's something vaguely troubling me about this answer which I cannot put my finger on, and I don't have enough time to read it closely enough to figure out what it is. A comment or two would have helped. But the basic point seems perfectly correct. – phoog Oct 01 '19 at 18:08
  • @KDog perhaps have a mod look into that (possible serial down voting)? This certainly is an extensive answer supported by references without doing any weird things. – JJJ Oct 01 '19 at 18:29
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    If I had to guess, it was that people thought that you put in editorializing that went beyond the topic of the question. I'm not really sure what "entitlements" or the fact that the People administer "God's Law" have to do with the question, I dispute that those are "assumed by article 4 of the Constitution", and they very much seem like efforts to insert editorializing into an otherwise good answer. I bet if you dropped that section you'd lose the downvotes as parts 1 and 2 comprise a strong, unbiased answer – divibisan Oct 01 '19 at 19:13
  • @divibisan There is nothing biased or editorializing about the comments about Article 4. If you disagree with the definition of republicanism, please give some historical context as to why. –  Oct 01 '19 at 20:33
  • I would argue that it's your responsibility to justify 1) why any of that is relevant to the question, and 2) to provide a legitimate source for your claims, not some partisan advocacy organization. The point of this site is to answer questions in (as much as possible) a direct and unbiased way. If you want to put in your personal opinions, that's fine, but don't complain about downvotes – that's what they're there for. – divibisan Oct 01 '19 at 20:38
  • @divibisan 1) I stated that this section only covers crimes against the people committed by the State. That the people are the ultimate cop in this scenario, given America's history, should not surprise. 2) If you don't like the link I provided, please read Federalist 28 as noted, or the couple dozen state constitutions that mention the right to revolt. –  Oct 01 '19 at 21:13
  • Adding legitimate sources is a big improvement. Thanks for doing that! With the context of Federalist 28, the relevance of mentioning the right to revolt is more clear, since the context of the question does involve (alleged) corruption by the President, which can be considered a crime against the people. Still, the discussion of the other 6 "principles" don't, in my opinion, add anything, and if you read Fed 39, you'll see no mention of entitlements or god. – divibisan Oct 01 '19 at 21:52
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    @divibisan the fed note that referenced the right to revolt, was included in the orig, although there was a typo in it –  Oct 01 '19 at 22:04
  • Let us continue this discussion in chat. –  Oct 01 '19 at 22:12
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There can be no "ultimate officer" as there is a constitutional system of balances and checks. This is the tripartite division of powers. Had there been a unitary such power, then one could have said there is an ultimate "enforcement officer".

Still, in terms of the tripartite sysyem, the president is the head of the executive sysyem. And so the "ultimate law-enforcemt officer". But this may not also be "ultimate" in another sense, that is ethics. For example, the Indian Removals Act was signed into law by President Jackson and was strongly enforced. Today, it seen as a symbol of ethnic cleansing and genocide.

Mozibur Ullah
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The President of The United States is not an officer of the United States, so technically "no." The President is the executive actual.

Article II of the Constitution of the United States:

The executive Power shall be vested in a President of the United States of America.

This alone justifies the text quoted in the question.

The commonly used phrase "separation of power" does not refer to a separation of power within the executive, but to the separation of power between the 3 co-equal branches: the legislative, the executive, and the judiciary.

The phrase "co-equal" here refers to the fact than none of the 3 outranks the other 2. But each one has certain power which present a limited check on the powers of the other 2.

The phrase which is commonly used, by the officers of the Executive branch, to affirm the fact that the Constitution makes the President the sole ultimate authority of the executive branch's actions is "we serve at the pleasure of the President."

A phrase commonly attributed to Harry Truman

the buck stops here

also indicates that the President has the ultimate responsibility for the actions of the executive branch. The responsibility is to the voters.

wrod
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