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If all executive powers is held by the President and FBI agents can make arrests, doesn’t that mean the President can too?

The Mamba
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  • Everyone can make an arrest, but I suppose you're not asking about that, are you? Also see Is the US president the ultimate law-enforcement officer? – phoog Jul 09 '21 at 16:30
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    In the UK any citizen can perform an arrest. However, in the case of a citizen's arrest, the citizen in question has to have been a witness to the crime. A police officer, who has not been a witness to the crime, has to obtain an arrest warrant from a court. (I am not a lawyer, and I've no doubt that someone can explain that better than I have done.) However, given that English Common Law is influential in that of most English-speaking jurisdictions I would be surprised if similar rules did not apply. – WS2 Jul 09 '21 at 16:31
  • No, I’m referring to actually putting someone in handcuffs and carrying police equipment. Basically I’m asking if the president can act with the equipment and authority of a law enforcement officer. – The Mamba Jul 09 '21 at 16:32
  • @divibisan No because I’m asking whether a different argument would hold up, the President holds all executive power, FBI agents can handcuff people and use tasers and other equipment, if they witness a crime, and apprehend the suspect, so I’m asking if the President can do the same instead of ordering someone else to. – The Mamba Jul 09 '21 at 16:34
  • In the UK , and I guess it's the same in most US states, any citizen can use handcuffs, if he or she happens to have a pair handy. But as I understand it they have to have been a witness to the crime e.g. If I catch someone breaking in to my neighbour's house, if I am brave enough, and big and strong enough it is perfectly in order for me (with or without assistance fro others) to physically detain them while the police are called. – WS2 Jul 09 '21 at 16:37

1 Answers1

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Any individual in the US — including the president — can make a citizen's arrest for certain crimes committed in their presence.

That aside, the power to make an arrest is vested in certain official positions. These positions are established by federal, state, or local statute — i.e., by Congress, state legislatures, or local committees — and individuals are explicitly granted the power when they take these offices, for the term they hold such offices. This includes police, federal agents, and certain other people who are not conventionally thought of as 'office holders' (despite the fact that they are government employees we typically call 'officers'). However, the power to arrest is not explicitly granted to the Office of the President by the constitution or by Congress, so the US president has no more power to personally arrest someone than any regular person does. Even though the president is titular head of various federal agencies whose officers and agents are empowered to make arrests, the power itself does not 'percolate' upward, but remains attached to the offices themselves.

In fact, under normal institutional constraints US presidents do not even have the power to command federal or local law enforcement to make arrests. That power is held by chiefs of police, sheriffs, and the heads of federal agencies with law enforcement powers (as granted by Congress or other legislative bodies), and is exercised independently of the White House. This is an intentional separation of powers, meant to prevent the chief executive from using law enforcement against political opponents, opposition journalists, or anti-administration activists. Those institutional norms suffered under the Trump administration, and are ignored or objected to by some of his most vehement supporters (who still call for mass arrests of their political opponents), but they may be recovering under the Biden administration.

Ted Wrigley
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  • This is almost exactly the same as the position in the UK. This article explains the circumstances under which a citizen's arrest can be made. But a government official would have no more power than any other member of the public as powers of arrest are vested in chiefs of police. (In theory the Queen could probably make an arrest - as she is the head of all branches of government - but the likelihood of it happening is probably roughly equivalent to the moon falling to earth.) – WS2 Jul 09 '21 at 17:05
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    Perhaps, you might consider going on to further explain the not-explicitly-asked question. If the FBI can arrest, if Chiefs of Police can arrest, if they are all tacitly part of the Executive Branch and they operate under the authority of the Executive (the President), then why doesn't the President have that power to grant. If, instead, the authority to arrest comes from a Legislative decision (Law), then how does Congress have the ability to make that power appear out of nothing. I believe this is The Mamba's basic misunderstanding. How do LEO's get arrest powers without the givers of the – CGCampbell Jul 09 '21 at 17:11
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    power having the ability to begin with. (To be fair, I've +1'd this, even though it is simply your opinion without backing sources, which I don't normally do.) – CGCampbell Jul 09 '21 at 17:11
  • @CGCampbell: I suppose I could expand with that. give me a minute... – Ted Wrigley Jul 09 '21 at 17:12
  • @CGCampbell: done. – Ted Wrigley Jul 09 '21 at 17:29
  • @CGCampbell: Just as an aside... As someone who has at times been considered an authoritative source on certain (abstruse) topics, I have to say that the overt concern with sourcing always leaves me feeling... ironically bemused, perhaps? I never know quite what to do with it, and I don't quite see the importance of it (since in my mind a good argument will beat a bad one, regardless of who says which). But I've come to realize there is no possible way anyone is going to understand my perspective, either, so... C'est la vie! – Ted Wrigley Jul 09 '21 at 17:43
  • @CGCampbell To understand this you would need to go back a very long way, certainly long before there were organised police forces. This article traces the position from Saxon England in c 500AD when policing powers began to be vested in local officials. The King never really got involved in that sort of minutiae. And Royal officials (from whom Presidents and Prime Ministers later emerged) advised the monarch on affairs of state. Policing was a parish function. – WS2 Jul 09 '21 at 18:24
  • Think of the FBI as a parish constable. Think of the President as the monarch, or an official advising the monarch. That's how the roles have been handed down. – WS2 Jul 09 '21 at 18:27