Administrative Agency Practice for ALJs
Edward P. Richards
January 2010
http://biotech.law.lsu.edu/
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Course Objectives
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Prof Richards
 Provide a general introduction to administrative
agency practice as context for ALJs
 Review the interplay between rulemaking and
adjudications
Prof Devlin
 Review the jurisprudence of Article V/Federal Article III
reviewing agency rulemaking and adjudications
 Discuss the special relationship between Department
of Administrative Law ALJs and Louisiana Agencies
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Agencies in Constitutional History
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The Colonies had rudimentary agencies
 States were active regulators during the 1800s
and still are major regulators.
The US Constitution is silent on agencies
 The United States Supreme Court was
uncomfortable with the delegation of legislative
and judicial powers to agencies
This was resolved in the 1930s and the courts no
longer question the hybrid role of agencies
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Agencies are the Vehicle for Carrying out
Political Policy
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Enforcement policy
 When does a business get a second chance and when
do they get closed for violating regulations?
 When do you use quarantine and isolation?
Fiscal policy
 Which diseases do you investigate when you have
limited staff?
 What programs are cut when the budget is cut?
Changes of government can profoundly change agencies
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Changing Agency Policy
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Executive branch control
 Replace the agency director
 Use Executive Orders to direct agency policy
Legislature
 Change the enabling law
 Increase or eliminate the funding for agency functions
Citizens
 Petition the agency to change regulations
 Participate in pubic hearings
 Lobby the executive and legislature
 Elect different politicians in the executive and legislature
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Agencies are Established by the
Legislature
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The agency enabling statute establishes the
agency's:
 Powers and Duties/Organization/Funding
 Standards for Judicial Review of the Agency's
Actions
Some state agencies are established by the state
constitution or constitutional amendments.
 The legislature must still fund and empower
such agencies
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Delegation of Power to the Agency by the
Legislature
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The Legislature cannot grant the agency more
power than the legislature itself can exercise
General Grant of Power
Specific Grants of Power
Contingent Grants of Power
 Air pollution regs triggered by ozone levels
 Emergency powers
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Location of Enforcement Agencies in the
Federal Government
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All enforcement agencies are in the Executive
branch.
 Enforcement can include orders to comply with
the law, fines, and criminal prosecution
Congress can control agencies that only do
studies and investigations, but no enforcement,
such as the Congressional Budget Office or the
Library of Congress
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Executive Control of Federal Agencies
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Cabinet agencies
 Presidential appointees, confirmed by the Senate
 Can be removed at will by the president
Independent agencies
 Presidential appointees, confirmed by the Senate
 Fixed terms of office
 Can only be removed by the president for cause
 IRS, SEC, Federal Reserve
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Executive Control in the States
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States have several elected executives that control
agencies
 The governor controls most agencies.
 The attorney general controls the legal office.
 Other state offices, like state auditor, also have elected
heads.
States also have independent agencies
Some states even allow legislative agencies with
enforcement powers
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Carrying Out Agency Policy
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Administrative Procedure Act (APA)
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The set of laws in each state and the federal government
that specifies how the agencies in that jurisdiction carry
out basic functions such as rulemaking, adjudications,
and how citizens can petition the agencies.
 Equivalent to the code of civil procedure for agencies
APAs were first adopted post-WWII
The APA only applies if the legislature has not made
special rules for a given agency.
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Administrative Rules
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The Legislature can delegate the power to make
rules to the agency
 Some agencies do not have rulemaking
authority
 Rules cannot exceed the authority in the
agency's enabling legislation or the
Constitution
Properly promulgated rules have the same effect
as statutes
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Why Make Rules?
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Legislatures do not have the expertise or the time to
legislate in technical areas
National standards can be adopted through agency rules,
harmonizing practice across jurisdictions
 National building codes
 Recommendations of the Advisory Committee on
Immunization Practices
Rules give the public and regulated parties guidance
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Directing Adjudications and Judicial
Review with Rules
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Facts or legal conclusions established by rules
cannot be contested in adjudications
 Rules were used to limit fact finding in
disability cases
 Sanitation codes limit disputes over restaurant
operation
Louisiana agencies with rulemaking powers could
use rules to establish the framework for
adjudications
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Public Participation in Rulemaking
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Proposed rules must be published for public
comment.
 The agency must take written comments.
 Some states require public hearings if
requested by enough people.
 Federal agencies sometimes use public
hearings on important policy issues.
The agency must review and respond to the
comments.
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Agency Enforcement Tools
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What is an Adjudication?
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Adjudications are the process used to make an order
involving specific identified parties
 All enforcement actions involve adjudications
Examples of adjudications
 ALJ trial type hearings
 Medicare bills
 Medical licenses
 Restaurant inspections
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How is an Adjudication Different from a
Rule?
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Rules apply to everyone in the affected class.
Adjudications decide questions in individual
cases and only bind those parties.
Parties to an adjudication are entitled to be heard.
 Adjudications may include oral hearings.
 Some adjudications are done on written
documents only.
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Adjudications to Make Policy
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Are courts charged with making law and policy
thought legal opinions?
 Do their opinions make law and policy?
 What is happening with gay marriage?
Are civil law courts bound by precedent?
 Why do we read civil court opinions?
 How do they set law and policy?
Agency adjudications can work the same way
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Why Make Policy Through Adjudications?
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Why don't legislatures write laws that are specific
enough that courts have no room to set policy?
When might a legislature intentionally write an
ambiguous law, knowing it will have to be
resolved by a court?
Agencies face the same issues
 While they can make rules, as we will see, that
can be slow, cumbersome, and politically
hazardous
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Permits and Licenses
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You have to show you have met the standards set by law
or regulation before you get the license or permit.
 Standards must be clear.
 Must treat all applicants equally.
Conditioned on accepting enforcement standards
 You agree to be bound by the administrative rules.
 You must allow inspections during business hours.
 Licenses and permits can be revoked without a court
order
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Inspections
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The inspector determines the facts through the
inspection.
The defendant may present its case explaining the
problem during the inspection.
The inspector must provide a written record.
Local government often allows appeals to the city
council.
The courts will defer to the inspector's findings if
the case is appealed to the courts.
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Administrative Searches
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License and permit holders may be inspected without a
warrant.
Other inspections may require an administrative warrant.
Requirements for an administrative warrant.
 No probable cause.
 Must show the reason for the search and the locations
Administrative searches cannot be used when a criminal
warrant is necessary.
 Special rules for national security law
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Administrative Orders
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The first step in enforcement is to issue an order
explaining the violation and how to correct it
 Most persons comply with the order
 If the person does not comply, the order proves
that the person was on notice of the problem
 In some cases there may also be a fine for not
complying with the order
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Enforcement of Agency Orders
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If the target of the order does not comply, then the
department must seek a judicial order to force
compliance
 Most agencies don't make arrests or use force
 Some agencies do have police and prosecutors
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Court Orders
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In many cases the agency must ask the court to issue
orders to enforce agency regulations or adjudications
Injunctions
 Orders to prevent an actions, such as operating a
restaurant
 Temporary injunctions
 Permanent injunctions
Personal restriction orders
 These order individuals to refrain from dangerous
behavior
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The Advisory and Consultative Role
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There are some agencies that do not have
enforcement powers
 They do research and education
 They shape policy by funding other agencies or
private projects
Even enforcement agencies depend on voluntary
compliance and have a strong advisory and
consultative role
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Public Health Examples
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The CDC is a non-enforcement agency
 The CDC's primary role is providing guidance to state
and local health departments
 Most guidance is voluntary, but can be tied to the
receipt of grant funds
State and local health departments
 Departments with enforcement powers also have an
important research and educational role
 This includes epidemiology, health education, and
technical assistance to businesses such as
restaurants
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Public Access to Agency Information
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Freedom of Information Acts
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Provide public access to information held by
agencies
Have exceptions to protect trade secrets and
information that will affect agency function or
public safety
Modified by state and federal privacy laws to
protect personal information
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Open Meetings Laws
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Provide for public attendance at agency
governing body meetings.
Require public notice of meetings
Allow for closed meetings on personnel matters
and other topics such as bids that require secrecy
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