Governmental Authority: Police Power, Inherent Powers

Last updated 7 days ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

Zoning codes and business regulations rest on police power, the broad authority a state holds to protect the health, safety and welfare of its citizens. Despite the name, no police officer need be involved. The federal government has no such general power; it regulates through the powers the Constitution does give it.

Police power is one of the inherent powers, those that belong to a government or branch without being spelled out one by one. Inherent does not mean unlimited. In November 2020, the Supreme Court temporarily barred New York from enforcing 10- and 25-person pandemic caps on attendance at a Brooklyn diocese’s services. It also held unconstitutional the seizure of the steel industry that President Truman ordered in 1952 without citing a specific statute.

Broad state authority, bounded federal authority

Police power is among the powers the Constitution reserves to the states. The Tenth Amendment reserves powers not delegated to the United States, and not prohibited to the states, to the states or the people. The amendment preserves that division of authority without listing everything a state may do.

The federal government has no comparable general police power, although its taxing, spending and interstate-commerce powers support extensive regulation. That difference sets where each government starts: a state begins with broad power to regulate, while a federal measure needs a foundation in the Constitution. A national purpose alone does not fill a missing grant of federal power.

State police power is itself described as inherent authority, subject to the federal Constitution. So police power and inherent power are not opposites; the two descriptions overlap. “Police power” identifies a broad regulatory function; “inherent” explains why authority belongs to a government or institution without a separate express grant for each task.

States also retain taxing authority, which coexists with federal taxation but remains subject to constitutional constraints. Eminent domain, the state’s power to take private property for public use with just compensation, is likewise an attribute of sovereignty. Regulating how property is used, taxing and taking property for public use are different government actions, even though sovereign authority underlies each.

Police power reaches beyond policing

Local police regulation can reach legitimate businesses and the development and use of real property. That makes the term relevant to ordinary decisions about where a business may operate or how land may be used. The legal issue is the government’s authority over the activity, rather than the identity of the official enforcing the rule.

California’s constitution, for example, allows a city or county to make and enforce local police, sanitary and other ordinances within its boundaries, provided they do not conflict with general laws. To assess a city ordinance, look for the state authority behind it as well as the ordinance’s own text.

Police power generally supports zoning that keeps commercial buildings and apartment houses out of specified residential districts. Apart from how they apply in particular cases, such ordinances cannot be declared clearly arbitrary and unreasonable, with no substantial relation to public health, safety, morals or general welfare. Euclid required clearly arbitrary and unreasonable provisions that lacked a substantial connection to public health, safety, morals or general welfare before finding them unconstitutional.

Rights still limit state and local rules

The Fourteenth Amendment bars states from depriving a person of life, liberty or property without due process, or denying a person equal protection of the laws. Due process includes fair legal procedures. Due process is flexible: the safeguards required depend on the particular situation. Courts weigh the private interest affected, the risk of error and the value of extra safeguards, and the government’s interests, including administrative and fiscal burdens. So the Constitution does not promise the same hearing and procedures before every government decision.

The Supreme Court has also applied many Bill of Rights protections to states through the Fourteenth Amendment’s Due Process Clause, a process known as incorporation. A state therefore cannot make a constitutional objection disappear simply by describing its goal as health or safety.

On November 25, 2020, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court temporarily blocked enforcement of New York’s occupancy limits of 10 and 25 people on the diocese’s religious services. The order applied while the appeal and any timely request for Supreme Court review were pending. The Court said its members are not public health experts and should respect the judgment of those who are. But it said the limits effectively barred many from attending religious services and struck at the heart of religious liberty. Even in a pandemic, it said, the Constitution cannot be put away and forgotten, and such a measure calls for serious examination. The state’s health objective did not settle how far its chosen restrictions could go. This interim relief rested on likely success, not a final First Amendment ruling. New York argued that worship gatherings received better treatment than comparably risky secular gatherings. Four Justices dissented: Roberts, Breyer, Sotomayor and Kagan. Roberts opposed an injunction because the congregations no longer faced numerical caps. Breyer, joined by Sotomayor and Kagan, considered a constitutional violation far from clear. Sotomayor, joined by Kagan, viewed restrictions on comparable secular gatherings as at least equally strict.

The Takings Clause prohibits taking private property for public use without just compensation. In its 1978 Penn Central decision, the Supreme Court gave general guidance for deciding when a regulation is itself a taking, known as a regulatory taking. Courts examine the regulation’s economic impact, its interference with expectations tied to the owner’s investment, and the nature of the government’s action. The Court cautioned that these cases call for case-by-case inquiries into the facts.

The Constitution, federal laws made pursuant to it and treaties made under federal authority prevail over contrary state law under the Supremacy Clause. State authority must therefore be assessed against both individual rights and the governing federal law.

How Washington regulates without a general police power

Article I expressly authorizes Congress to tax and spend for the common defense and general welfare, and to regulate commerce among the states. These are enumerated powers, meaning powers expressly identified in the Constitution. Their scope helps explain how Washington can regulate substantial parts of everyday life without possessing the states’ general police power.

The Necessary and Proper Clause lets Congress use implied and incidental powers, ones the Constitution does not list, that help carry out its express powers. The means Congress chooses must fit a legitimate constitutional end, must not be prohibited, and must remain consistent with the Constitution’s letter and spirit. An implied power connects a method to an authorized end; it does not let Congress substitute any desirable end for a constitutional one.

The power over immigration is described differently: since the late nineteenth century, the Supreme Court has described it as flowing from the Constitution’s establishment of a federal government. The Court has generally assigned the power to regulate immigration to Congress, while executive authority mainly derives from what Congress delegates.

Treaty making has an express constitutional basis: the President acts with the Senate’s advice and consent and the agreement of two-thirds of senators present. The Constitution also expressly provides for presidential appointment of ambassadors with Senate advice and consent. These functions should not be called inherent merely because they concern relations with other countries.

An emergency does not supply every presidential power

President Harry S. Truman’s April 8, 1952, order directed the Secretary of Commerce to seize and operate the nation’s steel industry to avert a nationwide strike that he believed would jeopardize national defense during the Korean War. The President cited no specific statutory authorization and instead invoked powers generally vested in the presidency by the Constitution and federal law. The defense need he cited explains why he wanted the mills operating; it does not answer who had authority to order their seizure.

In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held the seizure unconstitutional by a 6-3 vote. In the opinion that decided the case, Justice Hugo Black rejected the argument that the order was justified by the President’s executive power, his duty to enforce the laws or his power as commander in chief. The Supreme Court majority said that taking private property to prevent labor disputes from stopping production was a job for the nation’s lawmakers, rather than its military authorities. The decision did not deny that a strike could threaten national defense; it rejected the claimed presidential authority to meet that threat by this means.

In a separate opinion agreeing with the result, Justice Robert Jackson set out a framework the Court has since adopted for assessing presidential claims of power in relation to Congress. When Congress authorizes an action, presidential authority is at its maximum because it combines the President’s own powers with what Congress can delegate. When Congress has neither authorized nor denied authority, the President must rely on independent powers in an area where authority may be concurrent or uncertain. When the President acts against Congress’s expressed or implied will, presidential authority is at its lowest ebb. In that situation, a court can uphold the President’s claim to exclusive control only by ruling that Congress cannot act on the subject. Congressional silence is therefore different from congressional permission, just as permission is different from opposition.

Some emergency powers are standby authority Congress has delegated by statute. They remain dormant until the President formally declares a national emergency, and Congress can modify or rescind them. For statutory powers available during an emergency, federal law requires the President to identify the provisions being invoked before exercising them. An emergency declaration activates authority supplied by law; it is not a substitute for identifying that authority.

In its 1936 United States v. Curtiss-Wright Export Corp. decision, the Supreme Court described the national government’s foreign-relations power as inherent. But the case concerned an embargo the President had imposed under a congressional delegation. The company that challenged the embargo argued that Congress had impermissibly delegated a legislative power to the President; the case did not ask whether a president may act without Congress.

Recognition of foreign governments is a constitutional power the Supreme Court assigns exclusively to the President. Congress nevertheless retains foreign-affairs powers, including imposing embargoes, declaring war and withholding embassy funding, without necessarily intruding on presidential recognition. Foreign affairs contains particular allocations of authority, rather than a single presidential power over everything involving another country.

Why Congress and courts have inherent powers

Congress’s investigatory power is not expressly authorized in the Constitution. Congress’s power to investigate, backed by a process to enforce it, is an essential and appropriate aid to its work of legislating. Neither chamber has a general power to investigate private affairs. An inquiry must fall within the supporting powers necessary and appropriate to make Congress’s express powers effective.

Congress has three formal ways to respond when a person defies a duly issued congressional subpoena, a refusal known as contempt. The long-dormant inherent contempt power lets Congress use its own authority to detain the person until he or she complies. Under the criminal contempt statute, Congress instead refers the matter to the executive branch for prosecution. Or Congress can ask a court to enforce the subpoena.

Courts have inherent powers of their own: federal trial courts possess inherent authority to manage their own affairs so cases can be resolved in an orderly and timely way. A federal trial court’s exercise of inherent procedural power must respond reasonably to a specific problem and cannot contradict an express rule or statute.

A court using its inherent power to sanction litigation misconduct must use caution and respect due process when determining bad faith and assessing fees. When applicable rules adequately address bad-faith conduct, courts ordinarily should use those rules; inherent authority remains available when the rules and statutes cannot do the job.

Tracing authority and challenging its use

To trace a government action to its source, start with the actor and the action: identify which government or branch issued the measure and what it actually requires. Then locate the constitutional provision, state authority or statute that supports that action. Finally, examine the limit relevant to the dispute, such as a protected right, a conflicting superior law or a condition on delegated power.

Under the Administrative Procedure Act, courts can review federal agency action that a statute makes reviewable, as well as final agency action for which there is no other adequate remedy in court. A reviewing court can set aside agency action that violates constitutional rights, exceeds statutory authority, is arbitrary or capricious, or omits required procedure. The relevant question can be whether an agency stayed within its delegated power, even when Congress had authority to legislate on the subject.

A federal law known as Section 1983 allows a civil lawsuit when someone acting under state authority deprives a person of federal rights. When a judge is sued over judicial acts, the same law generally bars injunctions, court orders requiring or prohibiting action. The law makes an exception when a declaratory decree was violated or could not be obtained; a declaratory decree is a court’s statement of the parties’ legal rights.

In federal court, the Eleventh Amendment limits the remedy in a suit against state officials: a court can order them to comply with federal law in the future, but a retroactive money award paid from state funds can be barred. Identifying an unlawful action and obtaining a particular remedy are separate questions.