Reading Room Document

Constitutionality of delegating Federal law enforcement responsibility to State officials

In this brief memo, the OLC explained the circumstances under which federal law enforcement responsibility may constitutionally be delegated to a state official. Generally, a person who exercises significant governmental authority on behalf of the United States must be appointed a federal officer pursuant to the Appointments Clause. However, the OLC described two additional circumstances in which a state official might permissibly undertake federal law enforcement responsibility. First, under “cooperative federalism” programs, if a federal agency establishes guidelines and approves state-level implementation plans, it may relinquish authority to the state. Second, an Executive Branch official may delegate a private person to receive federal enforcement authority under very high and substantive supervision.

August 19, 1991