Police Power

• Author: Jeffrey Lehman, Shirelle Phelps

Page 10

The authority conferred upon the states by the TENTH AMENDMENT to the U.S. Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the safety, health, WELFARE, and morals of the community.

Police power describes the basic right of governments to make laws and regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

The right of states to make laws governing safety, health, welfare, and morals is derived from the Tenth Amendment, which states, "The 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." State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state.

Police power does not specifically refer to the right of state and local government to create police forces, although the police power does include that right. Police power is also used as the basis for enacting a variety of substantive laws in such areas as ZONING, land use, fire and BUILDING CODES, gambling, discrimination, parking, crime, licensing of professionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation.

If a law enacted pursuant to the police power does not promote the health, safety, or welfare of the community, it is likely to be an unconstitutional deprivation of life, liberty, or property. The most common challenge to a statute enacted pursuant to the police power is that it constitutes a taking. A taking occurs when the government deprives a person of property or directly interferes with or substantially disturbs a person's use and enjoyment of his or her property.

The case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994) illustrates how a state or local jurisdiction can exceed its police power. Mahony involved a zoning ordinance enacted by the township of Hampton in Pennsylvania. The ordinance prohibited a private party from operating a gas well in a residential district but allowed the operation of such wells by the government. Jack D. Mahony, a landowner who operated a...