Exercise of Police Powers by the State
The following is a synopsis from a book entitled Animal Law by Favre and Loring with some observations from myself.
Society, through laws, even in ancient times has sought to control various aspects of animal ownership and agriculture in general. Areas often addressed are animal migration, control of communicable and infectious diseases, depopulation with compensation and the likes.
So where does police power fit into the agricultural picture? It is a term referred to power of the “50 states, derived from sovereignty and to pass legislation that is binding upon members of society. Anytime a new law is passed, or a regulation is promulgated by an agency, there is an exercise of police power. That is a concept that is foreign to most farmers with exception of criminal instances. “While it seems at times this power may seem limitless, such is not the case. It is the judiciaryâ€™s role to determine whether or not a particular law or regulation is the proper exercise of police power. If the exercise of police power is found to be improper, then, in effect, the courts have declared the law void and unenforceable”.
Let’s give a real life example: When I had my first child I lived in a four-plex. One of the other occupants had two little dachshunds. These little dogs enjoyed doing their business on our front porch. This next part is example: I go to my Representative and asked that all dogs be destroyed in the state because of this trouble. He drafts a bill and it passes both the house and Senate and is signed into law by the Governor. Even though it could possibly be argued for the purposes of health and safety the judiciary would find the legislature’s response disproportionate to the risk to be controlled, hence unreasonable.
Our legislature passes laws which help to keep us healthy, provide safety, and the welfare of its citizenry. Proposed legislation must be reasonable and not arbitrary.
Police Power and the Farmer at the Federal Level
We have established that an exercise of police power could be considered improper… and void. On the federal level complex factors are examined a few of which are:
Is this legislation Constitutional?
Within the Constitutional context of animals your rights as a farmer and rancher are most protected by:
Fifth and Fourteenth Amendments-violations being lack of due process accorded the individual.
The Fourteenth Amendment, the lack of equal protection under the law.
The Fifth Amendment, the improper taking of private property.
“Under the concepts of procedural due process, the state may not interfere with private property unless certain minimal opportunities are provided the individual to understand and challenge the government action”. This is important to remember. I was doing a study of the history of animal identification in Washington State and discovered that the State Vet or designated authority may enter your premises for purposes of inspection unless you say NO. He then has the option to proceed with due process, have probable cause, and valid warrant and such. But you must say NO. You need to know you need to say NO. With due process you may argue you position and loose, but you have had your day “in court”.
The State Vet does have authority over disease issues. Here is an example: Right now the Hot Topic is brucellosis. Let’s hypothesize government determines my cattle has an infectious disease, such as brucellosis. The protocol for this is mandated to be slaughter of my cattle. The destruction of my cattle clearly interferes with my property rights, but equally clearly police power may deal with infectious disease. Typically the protocol would be call for a hearing and my right to rebuttal. It is commonly understood that though that inspection and testing are recognized as an adequate substitute.
Equal protection under the law ensures that all people are equal before the law. Thus it would be improper for the legislature to single out certain groups of people for controls or burdens, unless there is good reason. Licensing is a good example of this. It appears, though I am not an attorney of any stripe, that laws that are universal that include everyone such as these inspection points, probably would be considered reasonable in a court of law, because everyone stops. But, if the legislature proposed to stop only cocker spaniels or people driving ford pick-ups that might be a little questionable.
The last common child is the taking of private property. This is very complex and the implications of which could not be addressed by the average citizen, even a schooled one, only those licensed to do so and even that might require an area of expertise. The bottom line question is it fair for the farmer or rancher to bear the cost of a regulation for the public good? Ahhh that is a good question. “The stronger the state interest, the more supportive of the state is the judiciary; the greater the degree of interference with the individualâ€™s property, the more the courts is willing to find a taking. Close issues are invariably decided in the state’s favor. Even when there is reduction in or loss of value for owner legislation is typically upheld in the courts.
It speaks for itself but should a state law or regulation conflict with federal authority. In the case of NAIS at the federal the lines are very fuzzy, maybe intentionally so.
All these factors we must bring to recollection at the appropriate time. Be careful when we place our vote and as we attempt to scrutinize proposed legislation, view it from all angles and for all consequences, even the ones you would prefer not to look at. Most importantly, it is hoped that you will participate in the Constitutional political process laid down by our founding fathers. It can be exhausting… it can be frustrating…. it can be time consuming, but at the end of the day you can say to yourself, “I counted my days wisely and contributed to decisions being made that will effect my loved ones, my animals and myself”. It is what being a shepherd all is about; nobody said it would be easy.
From the trenches,