Administrative and Public Health Law
An Introduction for MPH Students
Edward P. Richards
Director, Program in Law, Science, and Public Health
Louisiana State University Law Center
richards@lsu.edu
http://biotech.law.lsu.edu
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
Police Power
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Police departments came later
Power to protect the public health and safety
 Communicable disease control
 Sanitation
 Nuisance
 Drinking water
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))
Articles of Confederation
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In effect between independence and the
ratification of the Constitution in 1789
Left all powers to the states
The states provided what support they
wanted to the federal effort
Did not work during the War
 Remember the stories about Washington's
troops not having shoes?
Public Health in the Constitution
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Federal Powers
 Interstate commerce
 International trade and travel
 War powers
State Powers
 Powers not given to the federal government
 Police Powers
Is there a Federal Police Power?
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Constitutional Debate
 US Supreme Court says no, but ...
Can the Feds do local disease control?
 CDC only comes in at the state's invitation
 Public Health is state and local
Can the Feds require smallpox vaccinations?
 Invasion Clause?
Limits of the Police Power
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Very broad
Protect public health and safety
Must be prospective
 Public health regulations are about preventing future
harm
Must be civil, not criminal
 The reason for the action, and not the results,
determine whether it is criminal
 Confinement in jail
 Megan's laws and confinement of sexual predators
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
Constitutional Basis of Administrative
Law
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The US Constitution does not mention
agencies
The founders did not anticipate that there
would be much federal government
Administrative law doctrines have been
shaped by Congress and the courts, within
the constraints of the Constitution
Separation of Powers
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Agencies are part of the executive branch of
government
 Created by legislatures
 Reviewed by courts
Federal agencies are under the President
 Independent agencies have appointed
commissions
States can have multiple executives
 AG, Insurance Commissioner, etc.
Legal Justification for Agencies
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Expertise
 Agencies are meant to have expert staff who manage
complex problems
Efficiency
 Agencies have more efficient enforcement powers
because they are not limited by criminal law
protections
Flexibility
 Agencies can act without new legislation
 Agencies can tap new expertise as needed
Enabling Legislation
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Agencies are established by legislation
 Establishes structure and mission
 Budget
Can be detailed or broad
 Protect the public health
 Cheap electric power and plenty of it
 Contrast with the ADA
Agency is limited by the legislation and the state
and US constitutions
What do Public Health Agencies Do?
Core Public Health Functions
Communicable Disease Control
Disease reporting
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No right of privacy
No right to refuse reporting
Can inspect medical records
Child abuse and violent injury reporting
Also extended to medical procedures,
occupational illnesses, use of scheduled
drugs, and other areas of public health
concern
Disease Investigation
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Contract Tracing
Partner Notification
Investigations of business and food
establishments
Public health data can be reported to the
police, but it cannot be the basis of
prosecution
Mandatory treatment and restrictions
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Vaccination law
 Jacobson - no free riders
 No requirement for religious exception
VD/STI/TB, others
 Can require testing or treatment
 Can hold in jail if you refuse
 Habeas Corpus is the remedy
Many states have weakened these laws due to
political pressure over AIDS
Food Sanitation
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Restaurant Inspections
Churches and other non-profit groups
Commercial food preparation
 Shared with FDA
Drinking Water
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Water treatment standards
Shared with Federal agencies
Surveillance of water quality
 "Boil" orders
 No drink orders
Waste Water
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Treatment standards
Disposal standards
Management of stream and lake and shore
contamination
Shared with Federal agencies
Land Use and Nuisance
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Dangerous Conditions
 Dangerous buildings
 Chemical or biological pollution
 Noise or other noxious emissions
Two central legal questions:
 When does the government owe compensation to the
owners of regulated property?
 When can inspectors enter private premises to look
for public health law violations?
Environmental Health
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Vector control
 Mosquitoes
 Animal control
Weeds
Vermin
Vital Statistics
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Birth and death records
Disease registries
Agency Legal Functions
What are the legal tools to carry
out these functions?
Rulemaking - Public Health Regulations
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Legislature must delegate its power
Why promulgate regulations?
 Gives direction to regulated parties
 Allow public participation
 Harmonize practices between jurisdictions
 Limits the 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 (Current controversy in LA)
 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
Enforcement Actions
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Civil fines
Injunctions to stop dangerous activities
Court orders to force compliance with public
health regulations
Criminal prosecution for disobeying a court
orders
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
Limits on Agency Power
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
What if You are Quarantining 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
Appealing Rulemaking
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The agency must have the legal power to make
rules
The rule must be consistent with the agency's
legal mission
The agency must follow the proper procedures
If this is done, there is no legal right to challenge
the rule in court
You can ask the agency to reconsider a rule
Appealing an 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 of Agency Actions
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Standards is set by the legislature
 De novo
 Arbitrary or capricious - most common
 No review – smallpox compensation act
Cannot limit constitutional right of review to
allow illegal actions
 Using public health powers to punish
 Using public health power for a taking
Can You Challenge the Agency's Policy
Decisions - St. Mark's Baths
... defendants and the intervening patrons challenge the soundness of the
scientific judgments upon which the Health Council regulation is
based .... They go further and argue that facilities such as St. Mark's,
which attempts to educate its patrons with written materials, signed
pledges, and posted notices as to the advisability of safe sexual
practices, provide a positive force in combating AIDS, and a valuable
communication link between public health authorities and the
homosexual community. While these arguments and proposals may
have varying degrees of merit, they overlook a fundamental principle
of applicable law: "It is not for the courts to determine which scientific
view is correct in ruling upon whether the police power has been
properly exercised. The judicial function is exhausted with the
discovery that the relation between means and end is not wholly vain
and fanciful, an illusory pretense."
State Variations
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Most states are more suspicious of agencies
than is the United States Supreme Court
States tend to give greater rights of judicial
review
States often require more agency due
process
Not unreasonable, given the limited
expertise of many state agencies
Political Control of Agencies
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Agency heads are political appointees
 Federal independent agencies are
different
 Some states have boards of health, but
not much improvement
Agency goals are subservient to other
political agendas
Salary is also a political control
Impact of Political Control
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Feds
 Conformation battles at the federal level
 Can still get talented people at the top
 More problems at midlevel, esp. for experts
States
 Salaries limit expertise in many positions
 Very difficult to get real experts at the top
because of improper political pressures
Impact on Public Health
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Future of Public Health
 IOM 1988
 No career track for high level public health
professionals
 Fired for political disputes
 No pension rights, no severance, not contracts
You cannot stay in public health if you protect the
public health
Do agencies have expertise any more?
Study Problem
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Bathhouses in LA
Bathhouse History
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Stonewall Riots in 1969
 Beginning of the gay rights movement
 Politicians realize the power of gay voting
blocks
Bathhouses
 Originally really steam baths, but the old
guys died off
 Became commercial sex clubs
Disease Epidemiology in Bathhouses
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Exposure patterns
 10-20 contacts a night
 1000+ contacts a year
Everything is an STD
 As contact frequency goes up, overall
transmission increases, even if the
disease is not very contagious
Transmissibility (rough)
Contact efficiency X number of contacts
_________________________________
percent of immune/infected persons
Hepatitis B
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Sexually transmitted, but low efficiency
 Gonorrhea - about 100% efficient
Bathhouses
 Lots of contacts
 Lots of uninfected people
 Quickly became endemic
Also a syphilis epidemic and lots of gonorrhea
No action to close the bathhouses because of
politics
What did this mean for HIV?
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HIV came into the US in the late 1970s
Hard to transmit sexually
 More contracts, more transmission
 Co-infection with other STDs increases
transmission
Bathhouses allowed the infection to spread
rapidly in gay men
 500,000 infected before we figured out what
was happening
Bathhouses today
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Some states closed them in the mid 1980s
Many went broke because their customers
died
Now they are reopening as a new cohort of
young gay men comes of age without
knowledge of the AIDS holocaust
Should we close them?
Failed efforts
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New Orleans tried to use zoning violations
 Said they were not really health clubs
 Already zoned for health clubs
Presumption for the owners in zoning
denials
 Court said they met the zoning criteria
 This was just an end run
What would be a better attack?
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General Powers
Keeping a disorderly house
 Criminal violation for keeping a place where
criminal activity goes on
What are the crimes?
 Unsafe sex can be reckless endangerment
 LA Crimes against Nature Law is Probably
Unconstitutional after the recent United States
Supreme Court case