1. Law and Health Promotion: The Case of Increasing Physical Activity Professor Frank S. Alexander Emory Law School  Frank S. Alexander 2009 NCCDPHP, OSI, OGC Centers for Disease Control and Prevention Atlanta, GA May 12, 2009 The Context for Legal Authority and Decision-Making

2. I.The Premises and the Central Cases II. The Allocation of Federal, State and Local Powers III. Application to the Central Cases The Context for Legal Authority and Decision-Making

3. I.The Premises and the Central Cases The Context for Legal Authority and Decision-Making Assuming health correlations Focusing on land use and building design Excluding emergency authority  Bike Paths and Pedestrian Walkways  Building Codes and Floor Area Ratios  Parking Space Requirements

4. Advocating Bike Paths and Pedestrian Walkways To whom would you speak? Where do you go? Who can effectuate such a change? The Context for Legal Authority and Decision-Making

5. Advocating Building Codes and Floor Area Ratios To whom would you speak? Where do you go? Who can effectuate such a change? [F.A.R: ratio of building square footage to lot size, with implications for open spaces and density] The Context for Legal Authority and Decision-Making

6. Parking Space Requirements To whom would you speak? Where do you go? Who can effectuate such a change? Minimums? Maximums? The Context for Legal Authority and Decision-Making

7. Layers of Authority Federal Constitution Federal Legislation State Constitution State Legislation Municipal Governance Private Actions The Context for Legal Authority and Decision-Making

8. Nature of Sovereignty Hierarchical Federal State Individual Dual Federal State Individuals Shared Federal State Individual The Context for Legal Authority and Decision-Making

9. Federal Powers General Welfare Clause; Commerce Clause; Necessary & Proper Clause; Supremacy Clause The Context for Legal Authority and Decision-Making States Rights 10 th Amendment: “The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states, respectively, or to the people.” Individual Rights 10 th Amendment and Bill of Rights

10. Key Conceptual Doctrines on Federal – State Allocation of Authority  Preemption and Supremacy  The Spending Power The Context for Legal Authority and Decision-Making

11. State Constitutional Law  Constitution as limit – plenary legislative authority.  Can prohibit things that the federal constitution permits (death penalty).  Can create rights not found in federal constitution (education).  Can be construed by state supreme court in any manner it desires, so long as not in conflict with federal constitution.  Can apply equal protection and due process differently, so long as not contrary to federal constitution (more than minimum rationality). The Context for Legal Authority and Decision-Making

12. State and Local Structures ConstitutionLegislaturePeople Counties Municipalities Special AuthoritiesSpecial Districts The Context for Legal Authority and Decision-Making

13. Key Conceptual Doctrines on State – Local Allocation of Authority  Home Rule: Constitutional and Statutory  State Enabling Statutes  State Preemption of Local Authority The Context for Legal Authority and Decision-Making

14. The Range of Analysis  Exclusive Constitutional Home Rule: rarely found; applicable usually to specific actions (geographic boundaries); no legislative override  Strong Constitutional Home Rule: direct grant of authority to local governments; strong presumption in favor of local government actions  Weak Constitutional Home Rule: narrow interpretation of authority conveyed; general law overrides  Legislative Home Rule: final authority rests in legislature; issues are presumption and preemption The Context for Legal Authority and Decision-Making

15. Private Land Use Regulation  Restrictive Covenants  Common Interest Communities (subdivisions, condos, co-ops) restrictions and regulations  Easements  Landlord-Tenant Law The Context for Legal Authority and Decision-Making Public Land Use Regulation  Police Power: General health, safety, welfare  Public Nuisances  Zoning  Eminent Domain

16. Eminent DomainZoning (Police Power) Nuisance (Police Power) The Context for Legal Authority and Decision-Making Key Variables: Permanent Physical Occupation – Eminent Domain Specific Harmful Activity being stopped – Police Power (Nuisance per se) Comprehensive or targeted (geographically; by subject matter) Prospectivity and Retroactivity Plausibility of Legislative determination of “general welfare”

17. Advocating Bike Paths and Pedestrian Walkways To whom would you speak? Where do you go? Who can effectuate such a change? The Context for Legal Authority and Decision-Making

18. Advocating Building Codes and Floor Area Ratios To whom would you speak? Where do you go? Who can effectuate such a change? [F.A.R: ratio of building square footage to lot size, with implications for open spaces and density] The Context for Legal Authority and Decision-Making

19. Parking Space Requirements To whom would you speak? Where do you go? Who can effectuate such a change? Minimums? Maximums? The Context for Legal Authority and Decision-Making

20. Law and Health Promotion: The Case of Increasing Physical Activity Professor Frank S. Alexander Emory Law School  Frank S. Alexander 2009 NCCDPHP, OSI, OGC Center for Disease Control and Prevention Atlanta, GA May 12, 2009 The Context for Legal Authority and Decision-Making