Constitutionality of Presidential Protection

Seems like a slow news day, so I thought I’d throw a little constitutional mind teaser out there.  The Secret Service is charged by Title 18 Section 3056 with presidential protection, which includes keeping people who haven’t been screened beyond a security perimeter that’s established by the Secret Service.  Now, in the District of Columbia, or on federal property, the Congressional power to authorize this is abundantly clear.  But by what power does Congress authorize the Secret Service to establish a security zone around the President?

I think a case can be made, but I’m curious what other people think.  Does the power to establish a security zone around the President extend to creating Free Speech Zones?  Such as the one at the Democratic Convention in Boston in 2004.  Have your say in the comments.  I’ll update the post later with my view on the constitutionality of Presidential, and other dignitary protection.

UPDATE: I think the power can be derived from the Necessary and Proper clause.  In order to carry out the executive functions authorized by Congress under its Article I powers, your Chief Executive has to be alive.  One could argue then that it’s Necessary and Proper for the Congress to authorize the Secret Service to create a security perimeter around the President, and those close to the Presidency.  I also believe, but am not certain, that the Secret Service is authorized by Congress to seek voluntary, compensated cooperation with the local authorities, who can erect cordons using the state police powers to effect the same thing.   At least that’s my take on the constitutionality of it.  I have no idea whether there are any court cases on the matter, but I think it’s pretty clear it would be a proper use of the Necessary and Proper clause.

UPDATE: The Neccessary and Proper rationale becomes a lot murkier when you’re talking candidates for office.  The public may be horrified by the idea of another RFK, but a candidate is not an organ of government.  But the Secret Service can still request that the local authorities exercise their police powers to accomplish the same thing.

19 thoughts on “Constitutionality of Presidential Protection”

  1. It take it you mean the constitutionality of being able to restrict buildings and areas to which 18 USC 1752 applies. The crime for attempting to gain entry or remain in an area restricted by the Secret Service?

    I doubt that they claim the original authority over non-federal facilities but rather it is given them as part of the coordination for the visit. A private owner or state/local government can restrict access to their controlled facilities and simply permit the Secret Service to control the space bringing the law to bear. Who would deny a restriction request? The owner, mayor, governor or manager normally would have access as well as given their permission so their is no issue of a a taking.

  2. Safety from death has to be priority one. It’s not the guys with the guns you see we have to worry about right now. BUT, if that became the mainstream, and there were 1000 people with semi auto rifles with 1/4 mile of the POTUS, things would quickly change.

    Protecting officials from verbal protesters is another thing. Free speech holds an interesting history as we are tauight as children. “Sticks and Stones may break my bones, but words will never hurt me”! But having people inside earshot when I am interested in hearing the particular speech? Irritating. Comes with the freedom, no one said it was easy being free.

    As a licensed Law Abiding citizen, I think I could stand right next to the POTUS and he would be safe. But the SS don’t know me from Adam, so they could keep me, or my possible threatening position away from him.

    There are many agents that send all day, every day working on these issues with the POTUS safety in mind only. I’m sure they are quite aware of the threats they know. (It is the ones they don’t that keep them up at night)

  3. What about a zone or “grounds” on the public streets? Last time I passed through a secret service security checkpoint it was on a public street.

  4. But look at 1752 (d).
    “(d) None of the laws of the United States or of the several States and the District of Columbia shall be superseded by this section.”

    Looks to me that 1752 does not override state carry laws.

  5. ParatrooperJJ:

    That sub section (d) just means that they are not creating a zone in which only federal law applies. The law still authorizes the Secret Service to create the security perimeter, which would include the power to keep weapons out.


    I’m not speaking of the wisdom of protecting the President. No one would dispute the fact that the office needs protection. But by what constitutional authority can Congress empower the Secret Service to create zones of protection, particularly on public grounds?

  6. Same authority that allows them to designate federal parks?

    I was thinking this clause:

    To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful building

    But that appears to require the federal government to purchase the land in question with approval of the state legislature in question.

    Commander-in-chief clause might be stretched to fit (militia of the several states … {in} actual service to the federal government) – though there might be some posse comitatus issues; and require that the Service be considered militia. (Not as wacky as it sounds).

    Constitutionally it might be better if primary security reverted back to the USMC and the Posse Comitatus statutes be revised to allow that…

  7. I know it’s not related but… would it be possible for you to tell me, in a few words, what you think about my post from two days back? I mean, I wrote a three-page post, and while of course you don’t owe me anything, I’m very curious as to your opinion.

  8. Public streets are closed all the time for a variety of reasons from repair work to block parties. You just have to have the right authority issue the orders.

  9. I would agree with you on the Necessary and Proper clause. I would imagine that it would also apply to candidates. Part of the constitutional mandate is to hold elections. Candidates are required to be alive in order for that to happen.

  10. The constitution says certain offices are elected, however election laws are powers of the states. The federal government only has limited powers over elections through the various constitutional amendments that grant them. Congress has no general power over elections.

  11. Ian – That clause is what allows the feds to create a jone of exclusive juristiction like military bases. The approval of the state that such zone in located in is required.

  12. I still don’t see any statutes that allow the USSS to create a prohibited zone off of federal property that overides state laws.

  13. There are whole departments that are not Constitutional but have beendeemed needed. Secret Service is on e of those. Neede but may be not Constitutional.

    The problem is that without challenge it is presumed constitutional and then get the weight of history. The other problem is if popular opinion agrees it is needed a court will decide it is constitutional an there is no backtracking from that.

    NRA was against the Heller case because they preferred the ambiguity rather than get a decsion against the individual right. But since Heller was decided we have pushed back gun control forces.

    Protection zones are not high on my list to fight against, constitutional or not.

  14. “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;” and “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

    Assuming assassination is an offense against the law of nations, anyway.

    Also, remember that the Secret Service is one of the senior federal law enforcement branches.

    It’s a conundrum – the job has to be done (protection of the president, even if the scope of the current law is overbroad). There’s a constitutional argument that the military should do it; but do you *want* a branch of the military whose job it is to protect the president (and other sufficiently important federal personages) from the citizenry? A Presidential Guard Regiment? The job is sufficiently different from the normal one of the military that it will tend to attract and keep its own personnel. Do we want a potential Praetorian Guard? Not that I think it’s likely, all things considered. But I’d much rather have nominal civilians doing the job than military troops. The presidential security detail agents are drawn from the USSS field agents, who are law enforcement trained rather than military-trained.

    (Actually, I don’t know if this is still true now that USSS is part of DHS rather than treasury – wikipedia claims it is).

  15. IIRC the Secret Service protecting the Pres is a fairly recent development. Lincoln was protected by the Pinkerton Detective service, and I believe the SS until very recently was the part of the Treasury that was mainly concerned with counterfeiting.

  16. AH mission creep gotta love it.

    and why the hell are we paying for it once they’re NOT el presidente?

  17. It becomes sketchier there, I think. But Secret Service protection in and of itself could be argued to be part of the President’s compensation.

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