police powers

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Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power. Berman v. Parker, a 1954 U.S. Supreme Court case, stated that “[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power”; while recognizing that “[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.”

The division of police power in the United States is delineated in the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is, in the United States, the federal government does not hold a general police power but may only act where the Constitution enumerates a power. It is the states, then, who hold the general police power. This is a central tenet to the system of federalism, which the U.S. Constitution embodies.

A state’s regulatory power, therefore, is incredibly broad and is limited predominantly by the state constitution, powers which the federal government holds exclusively, the Takings Clause and the incorporation of fundamental federal rights through the Fourteenth Amendment. In a striking example of the exercise of police power, in 1850, in American Print Works v. Lawrence, the New Jersey Supreme Court held that “a particular officer is authorized to destroy buildings where he shall judge it necessary to prevent the spread of a conflagration. . . [and that] it is a sufficient justification for the destruction of goods contained in such building, for which no compensation is provided.” In 1872, in the Slaughterhouse Cases, the U.S. Supreme Court upheld a New Orleans law which required slaughterhouses to move to the outer skirts of the city to maintain the cleanliness and health of the city as a valid exercise of police power. A 1854 Vermont Supreme Court case, Thorpe v. Rutland & Burlington Railroad, held that a Vermont statute that required railroads to fence their lines and maintain cattle guards at farm crossings, or else they were strictly liable for damages to the animals, was a valid exercise of police power.

Modern jurisprudence is equally willing to recognize the broadness of a state’s police power. For example, a 2019 California Supreme Court case, T-Mobile, LLC v. City and County of San Francisco, stated that “[t]he inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land,” and includes “the authority to establish aesthetic conditions for land use.” A 2014 Supreme Court of Massachusetts case, Abdow v. Attorney General, declared that a state’s police power is so fundamental that “the Legislature cannot surrender its broad authority to regulate matters within its core police power,” and that this includes “the regulation of gambling and the prerogative to ban forms of gambling that previously had been legal.”

[Last updated in December of 2020 by the Wex Definitions Team]