Professor Daniel Rodriguez’s Book Examines Government’s “Police Power”

During the public health crisis spawned by COVID, the extent of government’s “police power”—the legal ability to compel citizens to take (or not take) certain actions in the name of health, safety, welfare and the overall public interest—received renewed scrutiny and controversy.

Actions such as governors’ shutdown orders and social distancing or mask requirements imposed by public health officials often drew on police power arguments as a defense when they were challenged in court—often but not always unsuccessfully—by individuals and businesses.

Daniel Rodriguez, the Harold Washington Professor at Northwestern Pritzker Law School, has long researched issues regarding the ways in which law interacts with government activity and, vice versa, the ways in which government activity is structured and affected by legal rules.

So, it’s no surprise that Rodriguez offered a class on COVID-related law, beginning in April 2020, for the benefit of hundreds of students, faculty and staff—and eventually via open access on Coursera—that delved into these issues.

Government agencies and leaders “argued that we are undertaking to regulate this public health crisis and protect the public health of our citizens, and we have very, very broad power to implement regulations—some hugely burdensome, as we well remember—in order to promote public safety,” Rodriguez said. “I was accumulating cases every day that courts were considering from all over the place. And so, I taught that class and then taught a number of times for the next two years … until everybody was sick of talking about COVID law.”

Inspiration for a Deep Dive

But that experience, along with the longstanding strain of his research over the last 30 years in tenure-track positions at four different law schools—UC Berkeley, University of San Diego (where was also the dean), University of Texas, and Northwestern, where he arrived in 2012 as the dean  —inspired Rodriguez to research and write the recently released monograph, “Good Governing: The Police Power in the American States” (Cambridge University Press, October 2024).

“The police power has been the core regulatory power that state and local governments have long had, and so all sorts of regulations that we’re well familiar with, from traffic safety to housing safety, and even our criminal laws, are derivative of this power,” he said. In the book, Rodriguez examines the history and theory of the concept, and he delves into, “What are the purposes and functions that state constitutions have, and furthermore, how are those purposes and functions connected to the origins and also the expertise of this awesome power?”

Rodriguez’s thesis is that the origins and purpose of police power are attached to the notion of good governance, in two senses. The first is governing to promote the common good, or general welfare, which flows from understandings of what state constitutions are designed to accomplish on behalf of state citizens, he says. Secondly, he covers “how we think about the exercise of the police power: when it can be exercised, what is its scope, and what are the limits on that exercise of that power?”

The book examines how police power is limited by constitutional rights like liberty, property and free speech, Rodriguez said. “But maybe the most novel argument of the book, with respect to this idea of effective governing, is the attention that I draw to what I call ‘internal limits,’” he said. “This means the obligation that state and local governments have to act in ways that are not unreasonable, that are not the products of animus or bias, and that meet our common sense of what it means for the government to act effectively, in our interest—rather than in the self-interest of government, or irresponsibly, or arbitrarily.”

In the final section of the book, Rodriguez opines on ways in which an ambitious, perhaps even activist, police power could be relied upon to tackle an array of society’s most urgent problems, such as affordable housing, gun violence, wealth inequality and environmental protection. “Those are examples of significant, what are sometimes called ‘wicked,’ problems,” he said. “If the government was acting consistently with the vision of the police power that I’ve described in the book, we would have an ever-greater capacity on the part of government, and confidence in government, to address and tackle these problems.”

Drawing Upon Well of Research

Rodriguez does not think he could have written “Good Governing” earlier in this career, not because he lacked the time, focus or energy, but because he didn’t have the benefit of a long track record of researching and teaching about the complex issues discussed in this monograph.

His teaching and research examine the relationship between individuals and government, “but more to the point, it’s been about the interface between legal rules and government action,” he said. “Prominent on my menu of scholarly interests and teaching interests have long been constitutional law—federal, but in particular, state constitutional law, regulations, and certain forms of what sometimes are called sub-constitutional law, like administrative or local government law.”

Rodriguez had written articles and given lectures about police power, and he says the book was a direct outgrowth of years of thinking about these issues, and more recently about the purpose, function and capacity of state constitutions. Even before COVID, “I’ve taught courses in subjects that are very much related to a lot of the themes in the book,” he said, adding that the classic 1L course in property law enumerates the ways in which the law restricts individuals’ use of their private property, a subject also covered in his book.

Highlights Looking Back

Thinking back over the course of his career, Rodriguez cannot say he enjoyed being a dean any more or less than being a professor at the four law schools at which he’s taught full-time along with visiting positions at schools that include his alma mater, Harvard University. The day-to-day and week-to-week work is very different, of course, but he values them about equally.

Rodriguez feels great pride in his former students “who have gone on to do incredibly great things,” ranging from federal judges (even some shortlisted for the Supreme Court) to law school professors and deans both in the U.S. and overseas. “Hardly a day goes by where … I’m not reminded of my small part in the  accomplishments of these folks,” he said. “That I played some small part in that as a teacher, as a mentor, is a hugely rewarding career highlight.”

He will leave to others to judge the significance of his scholarly work, Rodriguez said, but “I’ll simply say that I’ve had a very fulfilling and productive career writing books and articles, solo  and with co-authors, and in some areas that have been undeveloped—that I helped maybe pioneer—and others that I’ve just made whatever contributions I can.”

Rodriguez also values the leadership positions he’s had, for example,  serving as president of the Association of American Law Schools a decade ago, and currently on the Council of the American Law Institute, and he encourages other busy deans and others to take on such positions, as well. Finally, over the past decade, he’s gotten much more closely involved in issues of access to justice, sitting on boards of organizations that promote solutions and writing, lecturing and speaking, including before Congress and the state legislature.

“I regard this engagement with these issues  as a career highlight.” he said. “If I look at my next 10 years, God willing, I will be more engaged in access-to-justice issues, where I feel like I can make a small contribution, even as a full-time academic. I mean, it’s sort of all-hands-on-deck.”