Tenth Amendment

The Tenth Amendment to the U.S. Constitution provides that all powers not delegated to the federal government or prohibited to the states, are reserved for the states or for the people, respectively.^[1] An example of a power delegated to Congress and prohibited to the states is the power to regulate interstate commerce.

Conversely, states have a concurrent power to tax and spend. States also have two unique powers to address matters related to public health. The first, discussed in Chapter 1, is the legal concept of parens patriae, a power used by state attorneys general to vindicate the state’s interest in the health and well-being of the state and its populace. The second power is the legal concept called the “police power,” under which states may govern matters related to health and especially local food environments.

The police power of the states originates differently than the powers expressly granted to the federal government by the Constitution. The Supreme Court explains that the police power is “a power which the State did not surrender when becoming a member of the Union under the Constitution.”^[2] It is a power based on the understanding that states are self-governing entities within the federalist system of the U.S. government.^[3]

Pursuant to their police power, state governments possess the authority to enact laws and regulations to protect, preserve, and promote the health, safety, morals, and general welfare of their population.^[4] They also may restrict private interests to protect these same values. The police power affords the government the discretion to determine the method to regulate injurious and unhealthy practices to protect the common good.^[2] Therefore, except as restricted by the U.S. Constitution, states may use the police power to benefit population interests that on balance trump personal interests as long as they do not do so in an arbitrary or unreasonable manner.^[6] This means that if the regulation does not restrict rights granted in the Constitution, courts will defer to the government when it is seeking to promote public health. Thus, public health ordinances are subject to a “reasonable basis” inquiry by courts.^[2] This is sometimes called “rational basis” review and is a highly deferential standard. Common examples include ordinances related to sanitation, safety, and zoning. All states delegate the police power to their political subdivisions, cities, counties, and towns, to varying degrees. Therefore, the authorities of local governments are diverse nationally.

State governments are considered to have the primary authority over public health. In a seminal Supreme Court case, Jacobson v. Massachusetts, the Court upheld Massachusetts’s right to require compulsory vaccination.^[2] In its decision, the Court explicitly stated that the police power of a state embraces all such reasonable regulations established directly by the state to protect the public health and public safety.^[9] The police power has been recognized as the basis for a great many state food laws and state government attempts to shape the local food environment. As discussed in detail in Chapter 9, states engage in many different types of activities pursuant to the police power. For example, they grant rights and restrictions on the use of land, called zoning, which determines where food retail establishments may be located within a community. State and local governments may attach conditions to a person’s ability to obtain and maintain a license to run a food retail location. They may also ban products that have public health consequences.

In light of the recognition that states are the primary regulators of public health, public health advocates’ concerns about preemption should be even more understandable. States can respond to the needs of their communities and local officials are directly accountable to their constituents. Based on this understanding, President Obama issued an executive order directing the federal executive departments and agencies not to interfere with state prerogatives unless there is a sufficient reason to do so. ^[10] The President recognized that much policy innovation occurs at the state level and explained his rationale as follows: “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government. An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States.”^[10] But recall that state and federal legislatures, rather than agencies, are more commonly the bodies that enact preemptive laws. Thus, the tension between state and federal control is one that will continually arise as governments attempt to protect a diverse array of interests.

[1] U.S. Constitution Amendment X.
[2] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[3] L.O. Gostin. Public Health Law: Power, Duty, Restraint (2nd ed.). Los Angeles: University ofCalifornia Press. 2008, p. 118.
[4] L.O. Gostin. Public Health Law: Power, Duty, Restraint. (2nd ed.). Los Angeles: University ofCalifornia Press. 2008,pp. 92-93.
[5] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[6] Schmidinger v. Chicago, 226 U.S. 578 (1913).
[7] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[8] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[9] Jacobson v. Massachusetts, 197 U.S. 11 (1905), at 25.
[10] The White House. Memorandum for the Heads of Executive Departments and Agencies.Subject: Preemption. May 20, 2009. Available: http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption
[11] The White House. Memorandum for the Heads of Executive Departments and Agencies.Subject: Preemption. May 20, 2009. Available: http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption