Public Health Law as Administrative Law
Edward P. Richards
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Louisiana State University Law Center
Baton Rouge, LA 70803-1000
richards@lsu.edu
http://biotech.law.lsu.edu
The Public Health Law Practice Project
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http://biotech.law.lsu.edu/manual/
Google Search - "Public Health Law Practice
Project"
This presentation, full text of many of the cases
and reports cited in the presentation and in the
appendices, and other public health law materials
are available on the WWW site.
What is Administrative Law?
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Administrative law is the law that governs agency
practice
Not an adversarial system
 Based on expert analysis and decisionmaking
 Not argument of counsel and rules of evidence
Understanding administrative law principles is
critical to effective public health practice
Public Health in the Colonies
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Most of the population lived in poorly drained
coastal areas
 Cholera
 Yellow Fever
Urban Diseases
 Smallpox
 Tuberculosis
Average Life Expectancy in cities was 25 years
Public Health Law Actions in Colonial
America
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Quarantines, areas of non-intercourse
Inspection of ships and sailors
Nuisance abatement
Colonial governments had and used Draconian
powers
 The Police Powers
Public Health in the Constitution
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Federal Powers
 Interstate commerce
 International trade and travel
State Powers
 Powers not given to the federal government
 Police Powers
Original Intent for Public Health Powers
 What was done at the time?
Actions in the 1798 Yellow Fever Epidemic
For ten years prior, the yellow fever had raged almost annually in the
city, and annual laws were passed to resist it. The wit of man was
exhausted, but in vain. Never did the pestilence rage more violently
than in the summer of 1798. The State was in despair. The rising hopes
of the metropolis began to fade. The opinion was gaining ground, that
the cause of this annual disease was indigenous, and that all
precautions against its importation were useless. But the leading
spirits of that day were unwilling to give up the city without a final
desperate effort. The havoc in the summer of 1798 is represented as
terrific. The whole country was roused. A cordon sanitaire was thrown
around the city. Governor Mifflin of Pennsylvania proclaimed a nonintercourse between New York and Philadelphia. (Argument of counsel
in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))
Public Health as the First Administrative
Law
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Among the first acts of Congress
 Public health service hospitals and quarantine
stations
State and Local Government
 Boards of Health
 Paul Revere sat on the Boston Board of Health
Early judicial deference to agencies
The Scope of Administrative Law
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Governmental Organization and Function
 What are the agency’s powers?
 How is it supervised?
Core public health agency functions
 Investigation, Reporting, and Consultation
 Standard Setting and Rulemaking
 Civil Enforcement and Adjudications
Public Health and Separation of Powers
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The federal and state governments are divided
into three branches:
 Executive Branch – Enforcement Agencies
 Legislative Branch – Informational Agencies
 Judicial Branch
State Law Separation of Power Issues
 Governors do not control other elected officials
The Political Control of Agencies
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Agencies carry out executive branch policy
 Control through the appointments process
 Independent agencies (Boards of Health)
Legislative control
 Budget
 Statutory Direction
What does this mean for judicial review?
Traditional Public Health Authority
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The General Grant of Power
 Exercised by a health officer or Board of Health
 The Courts deferred to agency’s expertise
 What judge would want to be responsible for an
epidemic?
Modern Administrative and Public Health Law
 Rejection of the Delegation Doctrine
 Allowed agencies to make rules
Do Health Departments Still Have General
Powers?
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United States Supreme Court
 Broad authority under the constitution
State Courts
 Less deferential under some state constitutions
State and Local Legislatures
 May limit general powers
 Often do it unintentionally
Why Do the Courts Accept General
Powers?
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Efficiency
Flexibility
Speed
Remember those dead
fish?
Think about SARS,
smallpox, and the
unthinkable
Due Process in Public Health
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When do you get a hearing?
Classic Food Sanitation Case - North American Cold
Storage Co. v. City of Chicago, 211 U.S. 306 (1908)
 Is there a Constitutional Right to a Hearing before the
Health Department Acts?
 Is this a taking - Must the state pay for the chicken?
Post-action hearings can satisfy due process
 Judicial protection through injunctions
The United States Supreme Court Takes a
Short Detour
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Termination of Welfare Benefits - Goldberg v.
Kelly, 397 U.S. 254 (1970)
Goldberg Rights
 Hearing before terminating benefits
 Oral testimony
 Over reading Goldberg
Limiting Goldberg
 Mathews v. Eldridge, 424 U.S. 319 (1976)
What if You are Locking Up People?
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Must there be a hearing first?
 Not under the US Constitution
 (Some states require hearings by statute)
Must there be a statutory provision for a hearing?
 Constitutional basis for Habeas Corpus
 Right to contest your confinement
Limiting Judicial Review
 Requiring Administrative Appeal
Getting Specific - Why Make Regulations?
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Legislature must delegate its power
Regulations:
 Give direction to regulated parties
 Allow public participation
 Harmonize practices between jurisdictions
 Limiting Issues if there is Judicial Review
Can be overruled by the legislature
When Agencies Make Decisions –
Adjudications
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How is an adjudication different from a rule?
 Specific facts and specific parties
How is an adjudication different from a trial?
 Expert decisionmakers
 Agency makes the final decision so decisions
are uniform
 Conflict of interests can be a problem
Permits and Licenses
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Permits
Licenses
Rights for duties
 Issued on Set Criteria
 Conditioned on accepting regulatory standards
 Warrantless inspections
Inspections
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Legally classified as an adjudication
License and permit holders
 No warrant
Administrative warrants
 No probable cause
 Area warrants
Limits to administrative warrants
 Cannot be used to undermine criminal due process
What if You Disagree with the
Adjudication?
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The agency may not be bound by the
recommendations of the administrative judge
 The agency can require an internal appeal
 The agency can set deadlines for appeals
Exhaustion of remedies
 Required before judicial review
 Unless the agency has acted illegally
Judicial Review
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Standards is set by the legislature
 De novo
 Arbitrary or capricious
 No review – smallpox compensation act
Cannot limit constitutional right of review
 Using public health powers to punish
 Using public health power for a taking
The Advisory and Consultative Role
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Public health is about prevention as well as
enforcement
Opening a new restaurant
 Designing food handling area
 Training kitchen personnel
 Managing day to day problems
The major role of the CDC
Acting in an Emergency
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Power expands with necessity
 Courts do not block emergency actions
 Knowing what to do is what matters
 Emergency powers laws are easy to pass, but
do not solve resource and expertise problems
Law matters a month after
 The more laws you pass, the more loopholes
you can create
The New Public Health
Bioterrorism and emergency
preparedness are the hot issues for
the day, but we still have to deal with
the changing nature of routine public
health
Traditional public health authority
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Immediate danger
Clear scientific bases for action
Individual actions threaten the general public
Classic cases
 Communicable disease control
 Food sanitation
 Water sanitation
Neo-Public Health Problems
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Individual problems that indirectly threaten
society
 Smoking in private
 Chronic Diseases
 Obesity
All major threats, but do they engender the same
authority?
How do we rethink public health law?