Police powers

Powers to legislate to promote public health, safety, morality, or welfare.

As the Supreme Court ruled in Jacobson v. Massachusetts[case]Jacobson v. Massachusetts[Jacobson v. Massachusetts] (1905), state governments possess police powers, presumably having inherited them from the British government at independence. Sometimes states authorize local governments to make police power laws, usually with significant restrictions. Police powers are very extensive. Through exercise of these powers, states have created traffic safety codes, compulsory vaccination laws, building and housing codes, labor regulations, air pollution abatement laws, restaurant inspection ordinances, and many similar laws. Indeed, few state laws that regulate the economy are not based at least partly on police powers. Some of these laws may dramatically control behavior. Laws that require strict quarantines for people with contagious diseases, for example, may even limit otherwise federally protected civil liberties. The Court consistently gave states broad latitude to use their police powers, usually requiring only that a state regulatory law be reasonably related to some legislatively determined health or safety goal to be constitutional.General welfare clauseGeneral welfare clause

The Jacobson court explicitly ruled that the states did not surrender police powers when the federal government was formed. The federal government has no general police power, except what is necessary to make health and safety regulations for the District of Columbia and for those territories, not part of any state, that are governed directly by Congress. As a result, federal laws that regulate economic or social behavior must be based on some other power, something explicitly granted to Congress in the Constitution.

The Potential for Conflict

The Constitution gives the federal government the power to regulate that part of the economy that concerns more than one state. Knowing that people would not be able to do business across state lines without such standard elements as a single national currency, the Founders looked to Congress to “foster and protect” interstate commerce by making those necessary national rules. Particularly after the New Deal in the mid-1930’s, Congress regulated many parts of the economy, being especially active in those areas where there were national problems (such as the farm economy) or where states were naturally unable to deal with problems (such as interstate transportation).

As a result, many areas of the economy became governed by national regulatory codes. For example, Congress created a single national system of airline and airport safety regulation. All air-traffic controllers are federal employees who are located at airports and other facilities as determined by the national government and who use the same equipment, which was bought by Congress. As a result, regardless of their location, these important safety officials can communicate with each other. Nationwide, airport runways and lighting systems must meet a single set of standards. U.S. pilots must meet the same health standards wherever they are based.States’ rights

However, these uniform national rules sometimes conflict with state regulations that are designed to deal with local problems. For example, if Congress protects public safety by regulating airlines and airports, can a state additionally require airlines to cease takeoffs and landings at an in-state airport at ten each night to promote the local health interest of noise abatement? If Congress requires certain air pollution control devices to be installed on new automobiles, can a state such as California, which has unusually severe pollution problems, require cars sold in that state to be equipped with even more (and more expensive) pollution control equipment? The development of uniform national rules prevents attention to local problems, but dealing with local problems destroys uniformity.

The Court as Referee

Because the conflicts in such cases are between constitutional powers state police powers versus the interstate commerce clause of the Constitution it becomes the Court’s job to resolve them. The Court serves as referee of the federal system, determining, in individual cases, how much states may interfere with federal uniformity. Traditionally, the Court balanced a state’s interest in its local regulation against the national interest in uniformity.

In doing so, the Court considered many variables. As a general rule, police power regulations are likely to be upheld if they cover areas of the economy in which state interest is traditionally paramount, if they further important local health or safety concerns, and if they affect interstate commerce only slightly. As the Court noted in Cooley v. Board of Wardens of the Port of Philadelphia[case]Cooley v. Board of Wardens of the Port of Philadelphia[Cooley v. Board of Wardens of the Port of Philadelphia] (1852), the harbor of the city of Philadelphia is different from any other harbor and poses unique hazards to navigation. Because the requirements for safe shipping in the port are so directly related to these unique conditions, Pennsylvania can legitimately make interstate and international ships meet its local safety codes while in the harbor, even though those ships are in other respects regulated by Congress.

However, as Chief Justice John Marshall observed in Gibbons v. Ogden[case]Gibbons v. Ogden[Gibbons v. Ogden] (1824), some parts of the economy, by their natures, require single, uniform national regulation. In such cases, only Congress can provide the necessary comprehensive laws. By tradition, some parts of the economy have become identified with such national regulation. Included are nuclear power plants, which are closely associated with national supplies of radioactive fuel and pose national hazards; modern commercial airlines, which must simultaneously operate in numerous states; and, as the Court ruled in Southern Pacific Co. v. Arizona[case]Southern Pacific Co. v. Arizona[Southern Pacific Co. v. Arizona] (1945), freight railroad systems.

In South Carolina v. Barnwell Brothers[case]South Carolina v. Barnwell Brothers[South Carolina v. Barnwell Brothers] (1938), the Court ruled that interstate trucking companies could be subjected to local safety regulation, even when the regulation made it difficult to operate across state borders. In this case, the Court emphasized the existence of distinctly local safety problems that justified lower speed limits, smaller truck-size requirements, and lighter load restrictions. As a result of this litigation, for many years states had much greater control over truck companies operating within their borders than they had over railroads or airlines.

General Trends

After the mid-1930’s, when the Court became more receptive to the increased federal control over the economy represented by New Deal programs, the Court generally tended to reinforce the development of national standards. Part of this trend toward national control was a response to the increasing nationalization of the economy itself, following the building of the interstate highway system and the growth of huge corporations that do business in every state. Coal-fired or water-driven power plants are local factories, but nuclear power plants are part of the interstate distribution network for carefully controlled radioactive fuel supplies. Because they are more expensive, they must be financed nationally, and because they are larger and more dangerous, they pose interstate indeed, national safety problems. Therefore, it is appropriate to make them meet national uniform construction and safety regulations.

Perhaps in response to this trend, the Court reinterpreted some constitutional rulings that previously had favored states. For example, after the development of the interstate highway system, the Barnwell Brothers[case]South Carolina v. Barnwell Brothers[South Carolina v. Barnwell Brothers] case was overruled in Kassel v. Consolidated Freightways[case]Kassel v. Consolidated Freightways[Kassel v. Consolidated Freightways] (1981). Because of the history of Prohibition and repeal, states exercised broader powers over alcoholic beverages than they could exercise over other consumer goods. Indeed, the Twenty-first Amendment gives states the power to block interstate commerce in alcohol entirely in order to maintain statewide prohibitions. However, South Dakota v. Dole[case]South Dakota v. Dole[South Dakota v. Dole] (1987) limited state power to regulate access to alcohol even in the interest of highway safety.

Finally, in the twentieth century, the Court developed the doctrine of federal preemption: If an area seems, by its nature, appropriate for national regulation, and Congress adopts a law that is meant as a comprehensive regulation, then states are forbidden to regulate in the area Congress has occupied or preempted no matter how severely local problems cry out for local regulation. For example, in Burbank v. Lockheed Air Terminal[case]Burbank v. Lockheed Air Terminal[Burbank v. Lockheed Air Terminal] (1973), the Court held that the federal government’s adoption of comprehensive airport regulation preempted that field and kept states from passing even urgently needed noise abatement regulations.

States’ Rights

Deference to the federal government became so extensive that scholars argued that the federal balance itself was being altered. However, in the latter part of the twentieth century, the Court showed some signs of letting the pendulum swing back the other way. In Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission[case]Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission[Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission] (1983), the Court suggested that it might construe the preemption doctrine narrowly. Specifically, the Court held that it would not assume that just because Congress had preempted the field of nuclear power plant safety it had also meant to preempt all state regulation designed to make sure that power companies that operated such plants were financially solvent. The Court seemed to be saying that Congress would have to specify precisely what it was preempting. If there was uncertainty, Congress could not count on the Court automatically resolving the uncertainty in favor of the federal government. This was quite a change of tone from the Burbank case. A similar narrow construction of the federal cigarette labeling requirements allowed people made ill by smoking to sue cigarette manufacturers in state courts in Cipollone v. Liggett Group[case]Cipollone v. Liggett Group[Cipollone v. Liggett Group] (1992).

States were given a freer hand to develop their own health and safety rules as a result of decisions that protected them from being forced to participate in federal programs. In Printz v. United States[case]Printz v. United States[Printz v. United States] (1997), the Court held that the Tenth Amendment forbid the federal government from assigning state officials any duties to implement a national program. Specifically, Printz held that local sheriffs did not have to perform the background checks of gun buyers required by federal handgun control legislation. Subsequently, some states developed their own safety regulations governing handgun sales.

Further Reading

  • One possible way to begin a study of this subject is by looking at general works on legal aspects of policing, such as John C. Klotter’s Legal Guide for Police: Constitutional Issues (6th ed. Cincinnati, Ohio: Anderson, 2002) and Barry W. Hancock and Paul M. Sharp’s Criminal Justice in America: Theory, Practice, and Police (3d ed. Upper Saddle River, N.J.: Prentice Hall, 2003). Paul Freund’s The Supreme Court of the United States: Its Business, Purposes and Performance (New York: Meridian Books, 1961) examines the Court’s role as referee of the federal system. The history of police powers is sketched in Ruth Lodge Roettinger’s The Supreme Court and the State Police Power (Washington, D.C.: Public Affairs Press, 1957) and Howard Gillman’s The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1995). An early comprehensive study is Willis Reed Bierly’s Police Power: State and Federal Definitions and Distinctions (Philadelphia: R. Welsh, 1907). Although the scope of police powers is rarely the sole topic of discussion, it often is discussed in works devoted to the proper scope of the congressional commerce power, with which it conflicts. These include Richard Epstein’s “The Proper Scope of the Commerce Power,” Virginia Law Review 73 (1987): 1387 and Vincent A. Cirillo and Jay Eisenhofer’s “Reflections on the Congressional Commerce Power,” Temple Law Review 60 (1987): 901.

Commerce, regulation of


Jacobson v. Massachusetts

New Deal

States’ rights and state sovereignty