Federal Police Power

As James Comey answers questions before Congress during his confirmation hearings, a renewed focus has come on the changing role of the FBI, especially since 9/11. As the role has expanded from federal law enforcement to counterterrorism, surveillance, and domestic intelligence gathering, many questions have arisen. Should the FBI use unmanned drones for surveillance, and to what extent? Can the FBI collect metadata on U.S. citizens without probable cause? Can the FBI read the content of emails after they “mature” to the 180 day rule? All of these questions were asked at the hearing.

The issue that is not being discussed, at least not before Congress, is the increasing trend to centralize police power at the federal level. Constitutionally, general police power is expressly reserved to State and local governments. Despite this, there are now 73 federal agencies, including the FBI, which carry guns and have arresting power. These agencies range from U.S. Customs and Border Protection to the Food and Drug Administration’s Office of Criminal Investigations. Even the Department of Justice has its own police force.

What has caused this seeming contradiction of a massive federal police state? Gradually, federal law enforcement has become increasingly in general policing. Each time the power expanded, it was in response to a very specific event.

Originally, the Federal Marshals were the only federal police force, and there were only 13 of them when they were created by the Judiciary Act of 1789. Their primary functions were to enforce federal court decisions, mainly issue subpoenas, writs, warrants, etc. They dealt with federal prisoners and carried out federal executions, for example murders committed at sea. They maintained law in federal lands which had not yet achieved statehood (think True Grit). Because Federal power was so limited, and federal laws so few, so too were the limitations on federal law enforcement.

Then, at the time of the civil war, the Secret Service was created. A national currency was adopted in 1862 and the Secret Service was created in 1865 to combat counterfeiting the currency. Before this time private banks printed their own promissory notes (paper currency). Their role was expanded to involve Presidential protection in 1902, after the assassination of President William McKinley.

The next big expansion of federal police power came in 1909 when the Federal Bureau of Investigation (FBI) was created to be the enforcement arm of the Justice Department. Before this, the Justice Department (created in 1870) used either private investigators or federal officers from other parts of the executive branch (such as the Federal Marshals) to enforce federal crimes. At this time, most federal crimes involved national banking, bankruptcy, naturalization, land fraud, and antitrust issues.

The Mann Act in 1910, which made it a crime to transport women across state lines for immoral purposes, expanded the role of the FBI to policing interstate commerce. Woodrow Wilson expanded the FBI’s duties to include espionage, sabotage, and draft dodging during WWI. In 1932, the kidnapping of the Lindberg baby and resulting federal kidnapping statute cemented the FBI’s role as a general police force. Between that and the enforcement of federal prohibition, federal law enforcement began its expanded role into areas previously thought to be the dominion of the states.

During the 1960s, the civil rights movement again expanded federal police power. The FBI was given jurisdiction over enforcing civil rights violations, racketeering, and gambling. Federal Marshals were called in to enforce desegregation orders. As more parts of the U.S. constitution were incorporated in the states, federal jurisdiction grew.

Again with the creation of the DEA in 1973 to fight the war on drugs, the size and scope of federal law enforcement grew. The widening definition of interstate commerce justified the increased jurisdiction of federal law enforcement. Now the Feds had authority to bust a grow house in California. The lines between state and federal jurisdiction become blurred.

The terrorist attacks of 9/11 were the next great jump in the steady increase of federal police power. The creation of the Department of Homeland Security added many new federal law enforcement agencies charged with protecting the peace. A suspected bomb, previously the job of local and state police, became the purview of the Feds. The FBI and other federal enforcement agencies began providing security for local events. For example, the Boston Marathon would not have had FBI agents on site 15 years ago; local police would have handled security.

The result of all this centralization is a mixed bag. Certainly, the federal police have done a good job addressing the problems they were created to solve. The federal government has more resources to detect terrorism, drug trafficking, immigration, and white collar crime. However, as this centralization continues, some of the accountability of local law enforcement is lost.

The whole reason that the founders placed the general police power at the local and state level is the belief that we should police ourselves. Indeed, the first organized and paid police force didn’t exist until 1844. Before that, volunteers enforced justice. When the police officer is one of us, they have the same problems and concerns. Thus, they are tempered against corruption and arbitrary use of force.

As independent sovereigns, states have many different laws, different enforcement procedures, and different ideas of justice. Maybe all states agree that armed robbery is a crime, but they do not agree on what the punishment for it should be. Other things, such as prostitution, are crimes in some states but legal in others. The U.S. system of federalism is intended to diffuse power, and the massive centralization of power currently happening should raise concern.

Podcast – Federal Police – The Adam Goldfein Show – Hour 1

Podcast – Federal Police – The Adam Goldfein Show – Hour 2

Additional Resources

The Washington Post, James Comey Confirmation Hearing: http://www.washingtonpost.com/blogs/post-politics/wp/2013/07/09/james-comey-confirmation-hearing-live-updates/#liveblog-entry-50707

Lawyers, Roles of the CIA & the FBI: http://criminal.lawyers.com/Criminal-Law-Basics/Federal-Protectors-Roles-of-the-CIA-and-the-FBI.html

The FBI, The FBI Since 9/11: http://www.fbi.gov/about-us/ten-years-after-the-fbi-since-9-11

Reuters, FBI Says It Uses Drones on U.S. Soil: http://www.reuters.com/article/2013/06/19/us-usa-security-drones-idUSBRE95I1NW20130619

Huffington Post, FBI Believes It Can Conduct Warrantless Email Searches, New Documents Show: http://www.huffingtonpost.com/2013/05/10/warrantless-email-searches-fbi_n_3253762.html?view=print&comm_ref=false

Bloomberg, FBI’s Data Mining Needs Scrutiny, Too: http://www.bloomberg.com/news/2013-06-30/fbi-s-data-mining-needs-scrutiny-too.html

Bureau of Justice Statistics, Federal Law Enforcement: http://www.bjs.gov/index.cfm?ty=tp&tid=74

The Truth About Guns, Full List of Armed Federal Agencies: http://www.thetruthaboutguns.com/2010/03/robert-farago/full-list-of-armed-federal-agencies/

Federal Bureau of Prisons, Quick Facts: http://www.bop.gov/news/quick.jsp