Administrative Law - Fall 2005
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Introduction
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Course WWW Site
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See link:
http://biotech.law.lsu.edu/Courses/adlaw
f05/index.htm
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Administrative Law
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Administrative law is the branch of law that
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.
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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 rule making,
adjudications, and how citizens can
petition the agencies.
The APA only applies if the legislature has
not made special rules for a given agency.
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Agency - APA 551
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See link:
http://biotech.law.lsu.edu/Courses/study
_aids/adlaw/551.htm
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Non-Agencies and Administrative
Law
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The Supreme Court held that the
President is not an agency.
Even non-agencies under the APA follow
administrative law principles in their
internal operations.
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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 adverarial 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.
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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.
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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
 FDA
 Department of Defense
State Agencies
 Health Department
 Department of Revenue
Local Agencies
 City Health Department
 County Hospital District
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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.
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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 different
significantly.
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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.
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Delegation of Power to the Agency
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General Grant of Power
 The legislature can give the agency 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.
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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.
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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
Federal
 Appointed by the President
 Securities and Exchange Commission is an example
State
 Can be appointed by the governor or other elected officials
 Can be statewide or local
 Boards of Health are appointed to hire and supervise the health
director to reduce political pressure on the agency.
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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?
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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 and participate in pubic hearings
 Lobby the executive and legislature
 Elect different politicians in the executive and legislature
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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 adoption 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.
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Carrying Out Agency Policy
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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
 Must give the public notice of proposed rules
 Must allow and consider public comment
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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
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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 consider the
comments.
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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.
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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.
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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.
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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.
 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 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.
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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.
 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.
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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 and this ends the problem
 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
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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
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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
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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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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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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Due Process
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When Do You Get a Hearing?
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North American Cold Storage v.
Chicago, 211 U.S. 306 (1908)
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The freezer failed and 47 barrels of
chicken were spoiled
The chicken was seized and destroyed
without a hearing
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Is there a constitutional right to a
hearing before the health
department acts?
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The court ruled that the health
department could act without a hearing
The business was entitled to a hearing
afterwards to contest the action and ask
for damages if it was unwarranted
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Is this a taking?
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If the state takes property for public use, it
must pay fair value
Must the state pay for the chicken?
 Not if it is a threat to the public health and is
destroyed
 The state does not have to pay for the costs
of regulation
 Some states are trying to change their laws
to require payment for regulatory costs
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Due Process for Personal
Restrictions
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Personal restrictions include quarantine,
excluding communicable disease carriers
from work, mandatory vaccinations, and
actions against individuals.
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Constitutional Due Process
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The US and most state constitutions do not
require a hearing before ordering restrictions
The Constitution does require a habeas corpus
hearing after the restrictions are in place, if
the person requests it
The government must show that it has the legal
authority to impose the restriction and the
factual basis for the restriction
For public health restrictions, there must be a
rational relationship between the restriction
and the risk
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Statutory Due Process
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Some state legislatures require more due process, such
as a hearing before the state acts, and some states also
require appointed counsel
 While these limitations are not constitutionally
required, they must be followed if required by your
legislature
Some states have passed emergency powers laws that
affect due process
 In some states these laws allow emergency actions
with less due process than in routine public health
 Other states have increased the due process
requirements during emergencies to discourage the
government from overreacting
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Judicial Review
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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?
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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
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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
 Health departments must deal with new conditions
and emergencies that were not anticipated by the
legislature
Speed
 If the courts required specific laws for all actions, it
would take months to years to get laws passed for
new problems
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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.
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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
 The court upholds the agency decision unless it is
arbitrary and capricious
 This is the usual standard for review
No Review
 In some cases, such as the smallpox compensation
fund, the legislature does not allow judicial review
of the agency decision
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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
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