Administrative Law - Spring 2008
1
Introduction to Administrative Law
This a general review to set the stage.
We will study these topics in more
detail throughout the course.
2
Learning Objectives
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This is an overview of administrative law to orient
you to topics we will cover in the course
Administrative law is complete legal system, with
its own system of legislation, enforcement, and
adjudication
The administrative law system resembles foreign
civil law systems
3
What is Administrative Law?
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Administrative law governs the organization and
functioning of government agencies, and how
their actions are reviewed by the courts.
 Federal administrative law governs agencies
such as HHS and the IRS.
 Each state has its own version of
administrative law governing its own state
agencies.
Everything government does, is done through
administrative law
4
Federalism and the History of
Administrative Law
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The colonial governments regulated many
aspects of day to day life, including trade
While the federal government did not do much
regulation until the 20th century, the states
broadly regulated business and private life
There was no period of regulatory laissez faire.
5
Public Health as the First Administrative
Law
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The colonial governments provided public
health services that were taken over by the
states after independence.
Public health service hospitals and
quarantine stations were established by the
first US Congress.
City and state Boards of Health are among
the first government agencies.
6
Modern Practice: The 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 rule making, adjudications,
and how citizens can petition the agencies.
 Federal APA was passed in 1946
 The APA only applies if the legislature has not made
special rules for a given agency.
http://biotech.law.lsu.edu/Courses/study_aids/adlaw/inde
x.htm
7
Non-Agencies and Administrative Law
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The President is not an agency.
The military is a quasi-agency
 An agency for many organizational and
procurement purposes
 Not an agency for military actions
DOJ, police departments, and courts
 Agencies for basic governance
 Not agencies for their substantive criminal law
work.
8
Organization and Control of
Administrative Agencies
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What are the Roles of Agencies?
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Agencies carry out government policy
Federal Agencies
 HHS
 Department of Defense
State Agencies
 Health Department
 Department of Revenue
Local Agencies
 City Health Department
 Parish Hospital District
10
Separation of Powers
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The Constitutions of the federal and state government
establish the structure of government.
The US and State Governments are divided Into three
branches:
 Legislative Branch
 Executive Branch
 Judicial Branch
While state governments all follow the three branch
model, their organizations differ significantly.
11
Agencies are Established by the
Legislatures
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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 later constitutional amendments.
12
Delegation of Power to the Agency
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General Grant of Power
 Broad powers with little specific direction.
 Broad powers allow flexibility
Specific Grants of Power
 The legislature can give the agency very specific direction
powers and duties.
 This limits flexibility but assures that the legislative policy is
followed.
Contingent Grants of Power
 The legislature can give the agency powers that are triggered
by specific events.
 Some emergency powers are triggered by a disaster
declaration.
13
Executive Control
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Federal Agencies
 All enforcement agencies are in the Executive branch.
 Congress can control agencies that only do studies
and investigations, such as the Congressional Budget
Office.
States have several elected executives that control
agencies, not a single head like the president.
 The governor controls most agencies.
 The attorney general controls the legal office.
 Other state offices, like state auditor, also have elected
heads.
14
Federal Independent Agencies
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Independent agencies are run by boards or commissions.
 Members have fixed terms and can only be removed
for bad conduct.
 Terms are staggered
Independent agencies are part of the executive branch in
that they are eventually responsible to the president.
 Remember - only the executive can do enforcement
Federal
 Appointed by the President
 Securities and Exchange Commission is an example
15
State Independent Agencies
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Not subject to the same restrictions as federal
independent agencies
 Whatever is allowed by the state constitution
 Can be appointed by the governor or other elected
officials
 Can be statewide or local
Examples
 Boards of Health are appointed to hire and supervise
the health director to reduce political pressure on the
agency.
 Levee boards were appointed to have a good time
16
Governmental Corporations
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The government can form corporations to carry
out certain functions.
 Amtrak is a federal example
Not subject to most adlaw constraints
Still subject to constitutional limits such as due
process for employees.
17
Privatization of Governmental Functions
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How to reduce the size of government?
 Hire private contractors to do the work
Benefits
 Takes the employees off budget
 Can be more efficient in the short term
Downside
 No direct control
 No constitutional protections
 Loss of institutional expertise
Blackwater anyone?
18
Agencies are the Vehicle for Carrying out
Public Policy
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Enforcement policy
 When does a business get a second chance
and when do they get closed?
 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?
19
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 and participate in pubic hearings
 Lobby the executive and legislature
 Elect different politicians in the executive and legislature
20
Federal, State, and Local Relations
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Federal control of state and local government
 Congress can preempt state laws to assure uniform
policy.
 Congress can make state funding contingent on
adopting certain policies.
States have different models of local control
 The legislature determines the allocation of powers.
 Some state health departments control the local
departments.
 Some local departments are independent.
21
Carrying Out Agency Policy
22
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
 Must give the public notice of proposed rules
 Must allow and consider public comment
23
Why Make Rules?
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National standards can be adopted through agency rules,
harmonizing practice across jurisdictions
 National building codes
 CDC guidelines on food sanitation
 Recommendations of the Advisory Committee on
Immunization Practices
Rules give the public and regulated parties guidance
Rules limit the issues that can be reviewed by the courts
24
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 consider the
comments.
25
When Agencies Make Decisions Adjudications
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How is an adjudication different from a rule?
 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.
26
Administrative Law Judge (ALJ)
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A fact-finder in the administrative law system.
ALJs usually act as inquisitorial judges and try to
assure that the case is fairly presented and
decided.
ALJ's do not make final decisions but make
recommended rulings to the agency
 There is a fight over this in LA
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How are ALJs Different from Judges?
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What does the judge know?
 Administrative law judges (ALJs) may use their
own knowledge of the subject.
 Judges can be disqualified if they know about
the subject.
Conflict of Interests
 ALJs often know the parties and may have
worked on the case.
 Judges in courts cannot know the case or the
parties.
28
The Adversary (Court) System
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Judges act as referees and decide whether
the lawyers are proceeding by the rules of
procedure and evidence.
If the attorney makes a mistake, such as
neglecting important issues, the judge does
not intervene.
While Louisiana has a civil law tradition, it
uses common law adversarial courts.
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The Inquisitorial (Agency) System
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The role of the judge is to make sure that the case
is presented properly and that the result is just.
The judge may ask questions and review the
evidence and can help an attorney to protect the
client.
 Inquisitorial courts are used in many civil law
countries.
 Agency adjudications look like the civil law
systems in Europe
30
How are Adjudications different from
Judicial Opinions?
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ALJs are primarily fact finders.
ALJs often follow Attorney General Opinions.
Judge decide legal questions on their own.
ALJ decisions are recommendations to the
agency and may be changed by the agency.
An adjudication is not binding in other cases.
Court decisions can be binding on lower courts.
31
Agency Enforcement Tools
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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.
Conditioned on accepting enforcement standards
 Must treat all applicants equally.
 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
33
Inspections are Adjudications
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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.
34
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.
 Unlike criminal warrants, administrative warrants do
not require probable cause.
 They require a list of the addresses to be searched
and the reasons for the search.
Administrative searches cannot be used when a criminal
warrant is necessary.
35
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
If the target of the order does not comply, then the department must
seek a judicial order to force compliance
 Most agencies cannot make arrests or use force
 Violating a court order allows the courts to use their powers,
which include fines and imprisonment for contempt
36
Court Orders
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Injunctions
 Orders to prevent an actions, such as operating a restaurant
 Temporary injunctions can be issued in emergencies when
there is not enough time for notice and a full hearing
 Permanent injunctions require notice to the affected party and
an opportunity for that party to be hear in court
Personal restriction orders
 These order individuals to refrain from dangerous behavior
 These can require treatment, such as participating in directly
observed TB treatment
 They can limit activities, such as preventing a typhoid carrier
from working in food service
37
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
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
38
Acting in an Emergency
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State and local health departments historically had broad
emergency powers.
 The courts recognize that public health powers must be
construed broadly in an emergency
 Unless limited by the legislature, they may act without special
laws.
Limits on Emergency Actions
 Knowing what to do is more important than the law.
 Emergency actions must be grounded in good public health
practice.
 Large scale restrictions, such as evacuations or quarantine,
depend on public cooperation.
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Judicial Review
40
Standards for Judicial Review of Agency
Activities
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Does the activity violate the US constitution
or treaties?
Does a state agency activity violate the state
constitution?
Is the agency activity allowed by the
agency's enabling act?
Is the activity prohibited by other laws?
Is the agency following its own rules?
41
What if the Law is not Clear?
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Traditional public health laws give the agency broad
powers without detailed statutory guidance
Courts use a standard from an environmental law case,
Chevron v. NRDC, to decide if the agency action is legal
 The first step is to determine if the law clearly
prohibits the agency action
 If the law would allow the action, then the second step
is to decide if the agency action is reasonable in light
of the objectives of the law
 If the action is reasonable under the statute, then it is
allowed
42
Courts Defer to Agency Policy Decisions
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"It is not the function of a court to determine
whether the public policy that finds expression in
legislation of this order is well or ill conceived.
The judicial function is exhausted with the
discovery that the relation between means and
end is not wholly vain and fanciful, an illusory
pretense. Within the field where men of reason
may reasonably differ, the legislature must have
its way." (Williams v. Mayor of Baltimore, 289 U.S.
36, 42 (1933)
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Why Do the Courts Defer to the Agency?
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Efficiency
 Legislatures do not have the expertise to draft detailed
directions for the health department
 Broad authority lets the agency use its own expertise
Flexibility
Speed
 Health departments must deal with new conditions and
emergencies that were not anticipated by the legislature
 If the courts required specific laws for all actions, it would take
months to years to get laws passed for new problems
44
Can the Court Change the Agency
Decision?
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If the court finds the agency action is illegal,
it can prevent the agency from acting.
A federal court cannot change an agency
ruling, only block it and send it back to the
agency for reconsideration.
Some state courts can change the agency
ruling and substitute their new ruling.
45
The Legislature Sets the Standard for
Judicial Review of Facts
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De Novo Review
 The court ignores the agency decision
Review on the Record
 The court uses the record of the agency proceeding but makes
an independent review
Deference to the Agency
 This is the usual standard for review
 The court upholds the agency decision unless it is arbitrary and
capricious
No Review
 In some cases, such as the smallpox compensation fund, the
legislature does not allow judicial review of the agency
decision
46
Exhaustion of Remedies
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Many agencies provide an internal appeals or
review process for agency decisions
 The courts require that persons who want to
challenge agency actions in court first go
through all the agency appeals
 The court does not require exhaustion of the
agency process if the agency is acting illegally
If the litigant goes directly to court and the court
decides the action was legal, it will be too late to
finish the agency process
47
Public Access to Agency Information
48
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
49
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
50