Extended Degree Program
Lecture Notes

Lesson 4. Scope and Limits of Government Authority

Approximate Time:

6 hours.

Key Points

A.  Institutionalization of Legal Authority

The manner in which legal authority is structured and used in this country is a reflection of both English jurisprudence and the distrust in which early leaders of the country held government -- any government.  While recognizing the need for a minimum of government in order to ensure order and commerce in society, they were fearful of the accumulation of unchecked power with any group of individuals.  Hence, through the Constitution legitimate police power was divided both horizontally and vertically.  (See figures 4-1 and 4-2.)

1. Federal Government:
   
   
   
   1. Division of Powers - Under the concept of federalism governmental powers are split into levels.  The logic of the federal system and the division of powers inherent in it, is that there is a safeguard against the concentration of power in any level of government as well as provision of flexible response to a variety of public needs and wants.
      1. National Government -- Carries on certain activities that are inherently national in scope.  The first of these was national defense; it was followed by establishment of a mint to provide a common "coin of the realm"; this was quickly followed by the establishment of a postal system that allowed any citizen to send a letter to any other citizen, at a reasonable cost.
      2. State Governments -- carry on activities that are geared more to a region or section of the country.  It is expected that there shall be some quite different emphases in programs between sections, and that this is necessary in a nation as large and extensive as ours has become, i.e., industry in the northeast and agriculture in the Midwest.
      3. Local Governments -- The Constitution provides that the powers of the sovereign people are to be divided between two levels of jurisdiction, however, through legislation and tradition this has come to mean that there are three organic levels, for local governments have been added.
         
         
   2. Separation of Powers - Federalism also provides for power to be split among three branches of government.  The power designated to a jurisdictional level is subdivided so that the capacity to initiate legislation is set off from the capacity to implement it, and both of these are set off from the capacity to review and assess the legitimacy of the use of the power to govern according to the dictates of the Constitution
      1. Legislative - Exercises the power to formulate laws and articulate policy; this is the arena where there is opportunity to contemplate a range of alternatives and then to consider the relative advantages of each in relation to others.  The legislative branch consists the U.S. Congress, the state legislatures, or city and county councils, etc. -- depending upon of the level of government.
      2. Executive - Exercises the power to carry out the law, once it has been set down as formal policy of the government by the legislative branch.  Allocates resources and establishes, and carries out, plans of action.  The executive branch consists of the President, governors, mayors, etc. and their administrative agencies (e.g., the U.S. Environmental Protection Agency, the Centers for Disease Control and the  Dept. of Labor at the federal level)
      3. Judicial - The so called "reactive branch" in that it has no power to initiate, only the power to assess the legitimacy of actions proposed (by legislative) or of actions taken (executive) in relation to the powers assigned within the Constitution.  The judicial branch, at the federal level, includes the U.S. Supreme Court, the 11 Circuit Courts, the many federal District Courts, and a number of specialized courts.
         
         
   3. Checks and Balances - The principle of checks and balances is sometimes thought of as applicable to either of these principles, but usually it applies to the later.
      
      
2. State Government:   Most state government mirror the organization of the federal (national) government, and have incorporated the principle of the separation of powers.  Legislative power is also divided between two houses (i.e., bicameral legislatures) in most states.  (Nebraska is an exception in that it only has one house in its legislative branch.)
   
   
3. Local Government:  Local governments come in a wide variety of sizes and forms, including:
   
   1. Municipalities (cities, towns, boroughs, villages, etc.);
      
   2. Counties (which are administrative units created by the state); and,
      
   3. Special purpose districts (fire protection, school, health, etc.). Local governments have become the most expensive and most extensive level of government operation.  As agriculture and rural centers have been abandoned for urban places, the number and level of services has increased exponentially.  It is at this level that the services which undergird our way of life are provided.

   With regard to the police powers of units of local governments it is important to understand that they:
   1) Are wholly a creation of the state; and,
   2) Are delegated power and authority by the state;

B.  Delegation of Governmental Powers

1. Nature of Governmental Powers:
   1. Power resides in the people (state).  It is delegated through the state  legislatures which are representatives of people.
   2. Legitimate power is the police power of government which is necessary to safeguard the safety, health, welfare, morals, etc. of the people.
      
      
2. Sources of Governmental Powers:
   1. National Government - The powers of the federal government have been delegated by the people of the individual states to the federal government.
   2. State Government -
      1. State governmental powers are inherent (i.e., they come about by the very nature and existence of the state) in the states since, at the time of the founding of this country, they were 13 sovereign and independent states (nations) which agreed through their ratification of the Constitution to give up certain, limited powers.to form a federal government.
      2. State government powers are also plenary, i.e., they are complete, absolute and unqualified.
         
3. Delegation of Powers:
   1. To executive and administrative agencies (ministerial or rule making).
   2. To units of local government.
   3. To the national government in the U.S. Constitution, principal authority lies in:
      1) Ability to tax and spend for public welfare;
      2) Regulate interstate commerce.
      

C.  Limits to Delegated Powers

The exercise of police powers by state and local agencies is not unbridled.  All enforcement activities, including inspections, must be conducted within the constraints of the U.S. and state Constitutions.  For example, in lesson 6 we will devote considerable attention to the attempts which have been made to clearly draw the line between the proper exercise of governmental powers and unwarranted invasion of privacy and unlawful search and seizure with regard to the administrative inspection.

In addition, to the restraints imposed on state and local agencies, federal regulatory activities, at least in theory, are restricted to those which are specifically authorized by the U.S. Constitution.  Traditionally these are activities which can be covered by the Interstate Commerce Clause.

1. Constitutional Boundaries:
   
   1. Federal powers are enumerated powers, i.e., they have been delegated to national government by the states inthe U.S. Constitution.  This implies that they are limited powers, and powers which, at least theoretically, the states could take back.  However, the Civil War established once and for all that the national unity is based on the will of the people, and not of the states.
      1) Article VI of the Constitution is the so-called Supremacy Clause.which prohibits states from passing laws which contradict or impede constitutional provisions or federal laws based on the Constitution.
      2) Bill of Rights (the first ten amendments to the Constitution) guarantee certain personal and states rights.  The most important of these are:
      a) Due Process, and
      b) Equal Protection.
      
   2. State powers.  The delineation of the scope of and limits to state powers are contained in the state constitution, and are absolute within these limits so long as they do not infringe on areas delegated to the federal government or protected by the U.S. Constitution.
      
      
2. Statutory Limits:   Statutes enacted by the legislatures define the amount, nature and limits of the powers delegated to an agency with regard to the concern specified in the act.
    
   a. Ministerial powers are a limited delegation of authority which restricts the agency employees to merely enforcing or carrying out the statutory provisions.
   b. Discretionary powers are a broader delegation of authority and provide agency employees with the ability to use professional judgement as long as decisions are not arbitrary or capricious.
   c. Rule making powers permit, sometimes require, the agency to establish and enforce rules, regulations and standards.
   
   
3. Common Law Boundaries:
    
   a. Nuisances - The major difficulty for the administrative agency in dealing with nuisances is in making the determination as to whether a particular nuisance condition constitutes a public or private nuisance.  If the problem is of a private nature then, the administrative agency does not have jurisdiction.
   
   b. Harassment - While the investigation and control of nuisances can consume a great deal of energy and time on the part of a public health agency, situations rarely occur in which an the work of an administrative agency is impaired because someone brings a suit against the agency alleging that the agencies actions constitute a nuisance.  It is much more likely that a party aggrieved in this manner will bring suit based on harassment rather than on nuisance.  Harassment is the continual and unwarranted exercise of police power against a particular party.
   
   c. Trespass - An employee of an administrative agency may not enter onto the private property of a business or private citizen (with certain exceptions) without permission anymore than can any other person.  Observations or evidence collected while an agency employee was trespassing on private property is likely to be challenged and rendered unusable to the agency.  We will spend considerable time addressing the issue of lawful entry onto private property for the purpose of conducting an inspection or investigation in lesson 6.
   
   d. Tort liability - A tort is a harm or wrong done to some individual.  Government officials, are not immune from lawsuits if they commit an actionable wrong while they are performing their duties.  Therefore, agency employees need to exercise reasonable care that their actions do not result in someone suffering some harm.
   
   
4. Judicial Limits:
    
   a. Judicial Review - Chief Justice John Marshall in an early Supreme Court decision established the  Court's right to review legislative and executive practice.
   
   b. Due Process - requires that whatever actions are taken by a government agency be consistent with existing laws and the usual practice.
   
   c. Equal Protection - prohibits an agency from treating one individual in a manner different from the way it treats all other individuals within a particular class.  For example, a health department may not impose restrictions or fees on a particular restaurant which it does not impose on all similar restaurants.

Progress Assessment Exercise

Download the following Microsoft Word file and answer the questions. Your responses should be brief, yet contain sufficient depth to demonstrate your understanding of the issues and/or concepts involved. All progress assessment exercises should be typewritten, well organized and clearly presented. You will be evaluated on the effectiveness and organization of your responses as well as on the substance of the content. When you have finished, email your answers to the instructor. You may also send them by US mail to:

Mr. Charles D. Treser
Department of Environmental & Occupational Health Sciences
University of Washington
Campus Box 357234
Seattle, WA 98195-7234

Exercise No. 4

When you have finished you may proceed to Chapter 2 Legal Tools.