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Abstract

Local boards of health often issue regulations that have broad effects that surpass the borders of the city or county to which they apply. Promulgation of such rules by board of health members appointed by the executive branch implicates separation of powers concerns; because such regulations may so extensively burden a locality’s citizens, it may be more appropriate for elected officials to adopt these regulations. Indeed, local businesses or other interested parties often bring suit challenging local board of health actions. Courts apply different analytical methodologies to review these challenges, which often leads to incongruent local health agency discretion for different boards in different states—or even between different local boards in the same state.

This Note suggests that the above concerns implicitly affect how courts assess local board of health action. Based on an examination of four local boards of health and their relationships with their local and state governments, this Note posits that there are three factors that courts and policymakers should examine when assessing the parameters of a local board of health’s regulatory discretion: the locality’s history, the locality’s government structure, and the locality’s politics. By taking into account these three factors before applying traditional doctrines of local agency review—including nondelegation, preemption, or Dillon’s Rule—courts may be better positioned to decide which of these doctrines should apply. In conducting this analysis, this Note also furthers the understanding of the place local boards of health hold in the grander struggle between local and state governments.

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