November 25, 2015 Urban Lawyer

Some Modern Day Musings on the Police Power

by Brian W. Ohm

Brian W. Ohm is a professor, Department of Urban & Regional Planning, University of Wisconsin-Madison; State Specialist in Planning Law, University of Wisconsin-Extension. J.D. University of Wisconsin-Madison; M.A., University of Wisconsin-Madison; B.A., St. Olaf College.

“The police power of the state is one of the most difficult phases of our law to understand, and it is even more difficult to define it and to place it within any bounds.”1

I.  Introduction

The police power is commonly thought of as the regulatory power of the state. Sometimes we are left with the impression that zoning and the police power are one and the same. “The city will lose its police powers if it does not adopt a comprehensive plan!” Various planners and attorneys repeated this statement to me following the passage of Wisconsin’s comprehensive planning law in 1999. The 1999 law required that, beginning on January 1, 2010, certain local government actions, like zoning, would need to be consistent with the local unit of government’s comprehensive plan.2 The logic of the argument that the city must adopt a comprehensive plan in order to maintain its police powers was that the consistency requirement made the comprehensive plan’s existence a prerequisite to having a zoning ordinance. In other words, if a local government did not have a comprehensive plan by January 1, 2010, the local government would not be able to have a zoning ordinance. On January 2, 2010, without a zoning ordinance the local government would no longer have any police power. While the Wisconsin courts have not yet had an opportunity to address this issue, if an aggrieved party brings such a challenge, it is likely that the court would void a local zoning ordinance if the prerequisite comprehensive plan is not in place. The voiding of a zoning ordinance, however, does not result in the total loss of a local government’s police power. Nevertheless, the sentiment that without zoning, a local government does not have police power reflects the longstanding difficulty of understanding the nature and scope of the police power.

As summarized in this article, the police power is extremely broad. Zoning is only one small part of the police power. The police power is one of the inherent attributes of state sovereignty.3 These attributes also include other authorities such as the power of eminent domain, the power of taxation, the power of escheat, and the public trust doctrine.4 The police power is not, as often cited, a power that is “conferred . . . by the Tenth Amendment, U.S. Const., upon the individual states.”5 The Tenth Amendment did not confer anything on the states.6 Rather, in the United States, sovereignty resides with the people.7 The United States Constitution is a compact between the people and their national government, and includes the Tenth Amendment as a reminder that the national government is one of limited authority and that those powers that the people did not give to the federal government remain with the states and the people.8 The police power is one of those authorities and remains central to the functioning of state and local government today.9

This article explores the present day scope of the police power. The first section of the article provides an overview of the police power. The overview examines the genesis of the term “the police power” and examines the evolution of the scope of the police power. The article then highlights several recent state court cases that include discussions about the modern day nature and scope of the police power. While the reference to the police power in the highlighted cases is often brief, the courts rely on the police power as support for resolving some of the issues raised in the cases. These contemporary cases do not exhaustively discuss the nature and scope of the police power, as cases from earlier courts did. Nevertheless, examining these cases allows one to reflect on what the courts are telling us about the police power and its role in democratic society. The cases are instructive for understanding the modern-day context of this fundamental power and they dispel some common myths and misunderstandings about the police power. The cases also add to the mysteriousness of the police power. The article concludes that the quotation at the beginning of this article is as relevant today as it was when it was written 94 years ago.

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