Climate Change Project

Table of Contents



Police Powers

(see also Public Health Law / Inspections and Searches / Habeas Corpus / Fluoridation / Administrative Law / Public Health Procedure / Emergency Administrative Orders and Regulations / Privacy / Quarantine / Public Health Reporting and Testing)

This page links to cases dealing with the government's general powers to protect the public health and safety.

Maryland Civil Commitment Law - Example of an administrative hearing process for deprivations of liberty - since standards for mental health commitment are higher than those for public health commitments, this process could clearly be constitutional for reviewing public health orders.

US Supreme Court Cases on Administrative Searches

The Original VD Quarantine Act to Protect the Military

Historic Books

Ernst Freund, The Police Power: Public Policy and Constitutional Rights, Callaghan & Company, Chicago (1904) (65 megs PDF)


Case striking down the law banning large sodas - New York Statewide Coalition of Hispanic Chambers of Commerce, et al v. The New York City Department of Health and Mental Hygiene, et al, 653584/12 [Sup. Ct. N.Y. County, Mar. 11, 2013.]

United States vComstock, 560 U.S. ___ (2010) - Surpreme Court allows the federal goverment to assert mental health commitment powers, raising the issue of a federal police powers. But see the Health Care Case, where Roberts says, "This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power."

In re Washington, 2007 WI 104 (Wis. 2007) - Court upholds jailing of uncooperative tuberculosis carrier.

Court upholds seatbelt law as not void for vagueness - State v. Eckblad, No. 74109-3 (Wash. 10/14/2004)

The police power cannot be used to protect nuisance owners - Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004) - This is a great review of nuisance law as applied to public health threats. The state passed a law to protect hog farms from nuisance actions. This court rejected this as an unconstitutional use of the police power to prevent the mitigation of a public health nuisance.

Health department fluoridation order preempted by state law establishing powers of water districts - Parkland Light & Water Co. v. Tacoma-Pierce County Board of Health, No. 73734-7 (Wash. 05/13/2004)

Court Reiterates that Treaties Can Expand the Power of Congress - U.S. v. Lara, --- S.Ct. ----, 124 S.Ct. 1628, (2004)

Supreme Court Upholds Sex Offender Notification as a Public Health Law - Smith v. Doe, 538 U.S. 84 (2003)

City may prohibit live sex shows - State v. Mutschler, 204 Ariz. 520, 65 P.3d 469 (Ariz.App. Div. 1 2003)

Dogs are property but can be destroyed if running loose - Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir.(N.C.) 2003)

Ohio Supreme Court limits authority to make tobacco regulations without specific legislative authority - D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 96 Ohio St.3d 250, 773 N.E.2d 536 (Ohio 2002) - important case

Cir Court Denies Injunction to Stop West Nile Spraying - No Spray Coalition, Inc. v. City of New York, 252 F.3d 148 (2d Cir. 2001) - Round II- Cir Court Rules Citizen Suit against Mosquito Spraying can continue under Clean Water Act - No Spray Coalition, Inc. v. City of New York, 351 F.3d 602 (2d Cir. 2003) - Round III - District Court Rules Citizen Suit against Mosquito Spraying can continue under Clean Water Act to resolve factual issues - No Spray Coalition, Inc. v. City of New York, 2005 WL 1354041 (S.D.N.Y. 2005)

Court upholds arrest based on misdemeanor seat belt violation - Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001)

Health and Safety Regulations Upheld for Abortion Clinics - Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir.(S.C.) 2000), including allowing the review of patient medical records by state inspectors.

Court upholds temporary detention of DUI suspects - State v. Atkinson, 755 So.2d 842, 755 So.2d 842 (Fla.App. 2000)

Supreme Court allows city to bar public nudity in clubs - City of Erie v. Pap's A.M., 529 U.S. 277 (2000)

Brief - Police Powers and Sexual Predator Laws - Kansas v. Hendricks, 521 U.S. 346 (1997)

State may ban physician-assisted suicide - Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997) and Washington v. Glucksberg, 521 U.S. 702 (1997)

Court rejects necessity defense in prosecution of needle exchange program personnel - Com. v. Leno, 415 Mass. 835, 616 N.E.2d 453, 62 USLW 2088 (Mass. 1993)

Grant of Police Power Trumps Criminal Prosecution for Needle Exchange Program - Spokane County Health District v. Brockett, 120 Wash. 2d 140, 839 P.2d 324 (Wa. 1992)

State may regulate nude dancing - Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

Court upholds seat belt law as a legitimate exercise of the police power - State v. Hartog, 440 N.W.2d 852 (Iowa 1989)

Miller v. Campbell Cty., 722 F. Supp. 687 (D.Wyo. 1989) - Temporary forced evacuation from home is not a taking for 42 USC 1983

Temporary injunction to close a gay bathhouse. Good discussion of judicial deference to public health decisionmaking - City of New York v New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979 (1986). The permanent injunction was issued in - New York v. New St. Mark's Baths, 168 A.D.2d 311, 562 N.Y.S.2d 642 (N.Y. App. Div. 1st Dep't 1990)

Supreme Court distinguishes between police power and parens patria for mental health commitment - Addington v. Texas, 441 U. S. 418 (1979)

USSC Upholds Public Heath Reporting - Whalen v. Roe, 429 US 589 (1977)

Classic case up holding health hold orders detaining prostitutes - Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973)

Classic TB restriction case - In re Halko, 246 Cal. App. 2d 553, 54 Cal. Rptr. 661 (Cal.App.Dist.2 11-18-1966)

The Bill of Rights is not a Suicide Pact - Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)

Old bathhouse closing case - Sultan Turkish Bath Inc. v. Board of Police Commissioners of, 169 Cal. App. 2d 188, 337 P.2d 203 (Cal.App.Dist.2 1959)

Classic case upholding broad public authority to fluoridate of water - Kaul v. City of Chehalis, 45 Wash. 2d 616, 277 P.2d 352 (Wa. 1954)

Court denies habeas corpus on tuberculosis patient - Moore v. Draper, 57 So.2d 648 (Fla. 1952)

Prince v. Massachusetts, 321 U.S. 158 (1944) - Supreme Court finds child protection laws, including vaccination, supersede parental religious freedom.

Court explains habeas corpus review in public health detentions and denies bail - Pauline Varholy v. Rex Sweat, 15 So. 2d 267, 153 Fla. 571 (1943)

Supreme Court Upholds Detention of Japanese Americans - Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944) - Companion cases to Korematsu - explores the exemption process for detainees - Ex parte Mitsuye Endo, 323 U.S. 283 (1944); Hirabayashi v. United States, 320 U.S. 81, 95, 63 S.Ct. 1375, 1383, 87 L.Ed. 1774 (1943) - Court Reverses Korematsu Conviction - Korematsu v. U.S., 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. Apr 19, 1984)

Standard for Judicial Review of Agency Policy - Williams v. Mayor of Baltimore, 289 U.S. 36 (1933)

Brandeis dissent on the states as laboratories - New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932) - This case arose when OK tried to declare ice manufacture a public utility. The dissent has an extensive review of economic regulatory theory as it existed in 1932.

Public Health Regulation Trumps Trade Secrets - Corn Products Co. v. Eddy, 249 U.S. 427 (1919)

Immunity for city and health officers for imposing smallpox quarantine order - Crayton v. Larabee, 220 N.Y. 493, 116 N.E. 355 (N.Y. May 01, 1917)

City may limit use of land for burials under the police power - Laurel Hill Cemetery v. City and County of San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515 (1910)

Federal destruction of property for public protection is not a taking - Juragua Iron Company v. United States., 29 S. Ct. 385, 212 U.S. 297 (1909)

The Classic Case of Destruction of Bad Food without a Hearing - North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908)

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) - Classic public health police power case involving the right of the state to require smallpox vaccination.

State May Exclude Persons From a Locale to Prevent the Spread of Disease - Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana, 186 U.S. 380 (1902)

Court refuses to enjoin Texas yellow fever quarantine of Louisiana - Louisiana v. Texas, 176 US 1 (1900).

Sentell v. New Orleans& C. R. Co., 166 U.S. 698 (1897) - Supreme Court finds dog regulations within the state police power

States can charge quarantine and inspection fees at ports - Morgan's Steamship Co. v. Louisiana Board of Health, 118 U.S. 455 (1886)

14th Amendment does not limit the state's police powers - Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872)

Does the state owe compensation when property is destroyed to protect the public in a disaster? - Surocco v. Geary, 3 Cal. 69, 1853 WL 639, 58 Am.Dec. 385 (Cal. Jan Term 1853)

Can a state charge foreign passengers to support public health - Smith v. Turner, 48 U.S. 283 (1849) (pdf with link to discussion of Philadelphia yellow fever outbreak) - This case has a great description of the yellow fever epidemics in the US in the late 1700s. This is an unusual case in that there is no opinion of the court, only a collection of arguments of counsel and individual opinions, concurrences, and dissents of the judges. The holding appears to be that such a tax was preempted by federal law and federal powers.

Elected offical can be personally liable for seizing property without proper authority - Boom v. City of Utica, 2 Barb. 104, 1848 WL 4861 (N.Y.Sup.Gen.Term, 1848)

Supreme Court Establishes the Reach of the Commerce Clause - Gibbons v. Ogden, 22 U.S. 1 (1824)

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