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Administrative Agencies Defined

Introduction to Administrative Law

Steven Wise
Administrative Law Judge
Iowa Workforce Development

Government entities other than
legislature or courts
Act as agents carrying out missions
assigned by statutes passed by
legislature
They administer the law assigned to
them by legislature
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What are the Roles of Agencies?
Organization and Control of
Administrative Agencies
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Agencies carry out government policy
Federal Agencies
 HHS
 Department of Defense
 FDA
State Agencies
 Iowa Workforce Development
Iowa State U
 Iowa Department of Human Services
Local Agencies
 Parks & Recreation
City Clerk
 Finance Department
Police Department
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Variety within Agencies
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Types of Agencies by Mission
Headed by single official or body of
officials
Agency heads usually appointed by
chief executive but some state agency
heads elected
Varied names—department, bureau,
division, section, board, office, etc.
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Regulatory Agencies
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Social Welfare Agencies
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Control or supervise the conduct of
individuals or businesses
Administer the distribution of public
funds or benefits
Agencies that combine both
purposes
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Types of Agencies by Structure
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Types of Agencies by Structure
Executive Branch Agencies
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Independent Regulatory Agencies
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Government Corporations
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Executive Branch Agencies
Agency head appointed by and can be
removed at will by chief executive
Include cabinet-level Departments and
their subdivision agencies
HHS – FDA, Department of Justice –
FBI, Interior Department - BIA
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Types of Agencies by Structure
Types of Agencies by Structure
Government Corporations
Independent Agencies
Appointed by chief executive with Senate
confirmation but removed only for cause or
expiration of term
EPA, CIA, SBA, NASA
Includes regulatory commissions and boards
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Headed by multiple-member board or commission
Members of both political parties required
Members have fixed, staggered terms
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Corporations chartered by federal government
Separate legal entity created by an Act of
Congress to perform a public purpose
Market-oriented product or services
Some receive federal budget appropriation,
others have independent revenue source
FDIC, US Postal Service, TVA, CPS, Amtrak
NLRB, NRC, EPA, FCC, SEC, CPSC
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Modern Administrative State
Modern Administrative State
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Administrative agencies not new in US
Before 1900s, US administrative
system was modest in size and scope
Today, administrative state is
expansive in size and scope.
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Barack Obama’s Government
George Washington’s Government
Congress
John Jay
Secretary of State
George Washington
President
Henry Knox
Secretary of War
Supreme Court
Alexander Hamilton
Secretary of Treasury
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State and Local Government Growth
Barack Obama’s Government
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http://www.netage.com/economics/publish/USGov.html
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Growth of administrative agencies is
not just at the federal level
Process has occurred at a smaller
scale with state and local
governments
State and local government have
executive departments, independent
boards and commissions, and
government corporations
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STATE OF IOWA GOVERNMENT
CITY OF DES MOINES GOVERNMENT
VOTERS
BOARDS & COMMISSIONS
Access Advisory Board
Airport Authority Board
Building and Fire Code Board
Citizen Odor Board
Civil Service Commission
Des Moines Music
Commission
Historic Preservation
Commission
Housing Appeals Board
Housing Services Board
Human Rights Commission
Library Board of Trustees
Neighborhood Revitalization
Board
Park and Recreation Board
Plan and Zoning Commission
Power Engineers Examining
Board
Sister Cities Commission
Skywalk Commission
Traffic Safety Committee
Urban Design Review Board
Water Works Board
Youth Advisory Board
Zoning Board of Adjustment
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Periods of Bureaucratic Growth
Period
Focus
Key acts passed
1887-90
Control Monopolies and Rates
Interstate Commerce Act
Sherman Anti-Trust Act
1906-15
Regulate product quality
Pure Food and Drug Act
Meat Inspection Act
Federal Trade Commission
1930-40
Extend regulation to cover various
socioeconomic areas
Food, Drug, and Cosmetics Act
National Labor Relations Act
Securities and Exchange Act
1960-79
Expand regulation to make a cleaner,
healthier, and fairer America
Civil Rights Act
Clean Air Act
Occupational Safety and Health Act
1978-93
Deregulation movement as a reaction to
bureaucratic overexpansion
Deregulation of Airline, Banking,
Radio and Television Industries
Paperwork Reduction Act
1993 2001
Deregulation of telephone and cable
companies and regulation of children's
exposure to Internet indecency
Telecommunication Act
Communications Decency Act
2001Present
Regulation to combat terrorism, address
financial crisis, and implement healthcare
reform
USA PATRIOT Act of 2001,
Dodd-Frank Act
Affordable Care Act
Broad Reach of Agencies
Think about how
administrative agencies
affect you during the
first hour of your day
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Defining Administrative Law
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3.
Defining Administrative Law (continued)
Administrative law defines the powers,
procedures and limitations of administrative
agencies
Administrative law is divided into three parts:
Powers vested in administrative agencies
Procedures imposed by law for exercising
powers
The remedies for improper or unlawful agency
action
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Administrative law involves the legal
checks for controlling and limiting
administrative agencies’ powers
The Legislative Branch, Executive
Branch, and Judicial Branch all control
administrative agencies in a number of
ways
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Defining Administrative Law (continued)
Defining Administrative Law (continued)

Legislature Branch exercises political
control:
 Standing and watchdog committees can
change an agency’s statutory authority
 Appropriation power
 Confirmation power for high-level
appointments
 Legislative review of rules
 Constituent services
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Executive Branch exercises political
control:
 Appointment and removal power
 Budget power
 Authority to reorganize executive
branch agencies
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Sources of Law
Defining Administrative Law (continued)
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Judicial Branch has primary role in
controlling administrative agencies
Judicial review of review of agency
actions
 Courts have authority to prevent
unconstitutional, unlawful, and
arbitrary agency actions against
citizens and businesses
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Constitutional Law
Statutes
Administrative Rules
Common Law
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Types of Law
Types of Law
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One way of dividing law is
into categories of:
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Substantive Law
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Procedural Law
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Substantive Law
“Regulatory Law”
IRS creates tax law
EPA creates
environmental law
FCC creates
communication law
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Types of Law
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Sources of Administrative Law
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Procedural Law
The process used to create or
enforce the substantive law
Administrative agencies must
follow certain procedures to
take action
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Constitutional Law
Statutes
Administrative Rules
Common Law
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Statutory Authority and Delegation
Statutory Authority and Delegation
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10 Fundamentals
Administrative agencies are creatures of legislature.
They can’t be created by courts.
Statute enacted by legislature creating an agency is
called agency's organic act or enabling act.
Agencies function as far as the legislature gives them
authority.
Authority given may be very broad or very narrow.
Federal agencies typically given broad, general powers.
State legislatures often enact more detailed agency
statutes.
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10.
Some enabling acts contain agency procedures. Agencies
often gets procedures from a more general statute
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Federal Administrative Procedures Act, 5 USC 551 et
seq.
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State Administrative Procedures Act, Iowa Code
Chapter 17A
Within limits of enabling acts, agencies make policy.
Within the limits of the APA, they also set procedures
for efficient and fair decisionmaking
Enabling acts and APAs provide minimum requirements
for agencies. Agencies have leeway to fill in the gaps-both procedural and substantive.
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Separation of Powers
Administrative Procedure Act (APA)
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Set of laws in each state and the federal
government specifying how agencies
carry out basic functions such as
rulemaking, adjudication, and how
citizens can petition the agencies.
APA applies if legislature has not made
special rules for a given agency. Iowa APA
Code chapter 17A
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Common Agency Characteristic
Separation of Powers
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Constitutions of federal and state
government establish structure of
government.
US and State Governments have three
branches:
 Legislative Branch
 Executive Branch
 Judicial Branch
Local governments merge executive and
legislative powers
Government authority divided into legislative,
executive, and judicial and each given to a separate,
equal, and independent entity.
Founders diffused these powers to guard against
abuse of power and prevent governmental tyranny,
Madison's famous words, "The accumulation of all
powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and
whether hereditary, self-appointed, or elective, may
justly be pronounced as the very definition of
tyranny."
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One identifying characteristic of a
modern administrative agency is the
combination of executive power
(investigation/enforcement), legislative
power (rulemaking). and judicial power
(adjudication)
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Government Operating Within the “Shadow of the Law”
U.S. CONSTITUTION
BILL OF RIGHTS
Delegate
•Powers
•Duties
Oversight
LEGISLATURE
Statutes
EXECUTIVE
Executive Orders
GOVERNMENT
“AGENCY”
Delegation Issue
JUDICIARY
Judgments
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Appeal
Judicial
Review
Power
Rulemaking
Investigation
Licensing
Enforcement
Adjudication
Means
Notice and
Comment
Procedures
Require Records
Inspections
Subpoenas
File Petitions for
Violations of
Rules
Hear Cases
Results
Rules Regulations
Act as
Legislature
Develop
Evidence
Act as
Investigator
Prosecute
Violators
Act as
Prosecutor
Orders
Decisions
Act as Judge
Purpose
To Regulate
Private Sector
To Inform Agency
To enforce rules
To Decide
Contested Cases
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Can Congress or state legislature delegate authority to
an agency without violating the separation of powers
principle found in the Constitution?
Law Professor Kenneth Culp Davis: “In our theoretical
discussions we should recognize that we have
abandoned the basic idea that executive, legislative
and judicial power should be kept separate from each
other in order to protect against tyranny. We purposely
combine the 3 kinds of power in administrative
agencies. The protection against tyranny comes, not
from separating the powers, but from our system of
legislative supervision of administrative agencies and
judicial review of administrative action.”
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Delegation of Power to the Agency
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Agency rules challenged as a unconstitutional
delegation of rulemaking power to an administrative
agency.
The US Supreme Court has rejected such challenges:
 So long as Congress lays down by legislative act an
“intelligible principle” to which the actor is directed
to conform, the delegation is not an forbidden
delegation of legislative power.” Touby v. U.S.
(1991).
 In the Touby case, Congress gave the Attorney
General power to add new drugs as schedule 1
controlled substances if “necessary to avoid an
imminent hazard to the public safety.” According to
the Court , this was an “intelligible principle.”
Carrying Out Agency Policy
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Iowa APA Procedures
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Iowa Code Chapter 17A, called the “Iowa
Administrative Procedures Act” (IAPA) defines
specific procedures which must be followed
for carrying out agency policy:
Promulgating or modifying administrative rules
Regulating contested cases which are trialtype hearings
Enforcement Actions
Judicial review of any agency action
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Administrative Rulemaking
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Why Make Rules?
Administrative Rules
The Legislature can delegate the power to make
rules to the agency
 Some agencies do not have rulemaking
authority
 Rules can’t exceed the authority in the
agency's enabling legislation or the
Constitution
Properly promulgated rules have the same force
as statutes
 Must give the public notice of proposed rules
 Must allow and consider public comment
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Definition of a Rule
Public Participation in Rulemaking
IAPA §17A.2 (11) contains general definition of
an administrative rule:
Rule means each statement of general
applicability that implements interprets or
prescribes law or policy, or that describes the
organization, procedure or practice
requirements of any agency. The term includes
the amendment or repeal of an existing rule
IAPA §17A.2 (11) sets out 11 exclusions from
the definition of a rule.
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Breadth and depth of regulation today makes it
difficult for legislatures to specify the details of
modern regulatory schemes. Details are
delegated to agencies for rulemaking.
 Adding scientific expertise
 Adding implementation detail
 Adding industry expertise
 Adding flexibility
 Finding compromise
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Proposed rules must be published for public
comment.
The agency must take written comments.
Federal agencies sometimes use public hearings
on important policy issues.
Some states require public hearings if
requested by enough people (25 in Iowa).
The agency must review and consider the
comments.
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Iowa APA Rulemaking Procedures
Iowa Code §17A.4
Iowa APA Rulemaking Procedures
Iowa Code §17A.4
1.
Proposed rules published in Iowa Administrative Bulletin (IAB).
3.
Comment Period and Public Hearing (20-day minimum).
4.
Review by the Administrative Rules Review Committee (ARRC).
5.
Agency Adopts Final Rules (35-day minimum from NIA).
6.
Final Rules Published in Iowa Administrative Bulletin (IAB)
8.
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Notice of Intended Action (NIA) is filed with the Governor’s
Administrative Rules Coordinator.
2.
7.
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Final Rules Reviewed by the Administrative Rules Review
Committee (ARRC).
Final Rules Published in the Iowa Administrative Code (IAC).
IAC is available at
http://www.legis.iowa.gov/IowaLaw/AdminCode/adminLaw.aspx
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Iowa APA Rulemaking Procedures
Oversight Provisions
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Governor, Legislature, and Attorney General
have power to influence or delay the
rulemaking process.
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Contested Cases - Adjudication
Objection by ARRC, Governor, or AG--§17A.4(4)
Governor rescission-- §17A.4(6)
Session delay by ARRC--§17A.8(10)
70-day delay by ARRC--§17A.4(5)
General Referral by ARRC--§17A.8(7).
Legislative veto--Iowa Constitution, Art. III,
section 40.
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Iowa APA Contested Case Procedures
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Administrative Law Judge (ALJ)
Contested case process found in Iowa IAPA §§17A.10 17A.18
Evidentiary hearing because if decision impacts an
individual’s rights, duties or responsibilities
Contested case similar to a judicial hearing, except
that it is held before an administrative agency
The presiding officer can be an administrative law
judge or a designated official of the agency. No jury
involved with the contested case process.
Due Process protections of notice and opportunity to
be heard.
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A fact-finder and law applier in the
administrative law system.
ALJs usually act as inquisitorial judges
and try to assure that the case is fairly
presented and decided.
Some ALJ's make recommended rulings to
agency. Other ALJs are authorized to
make final decisions, subject to appeal.
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ALJ – Types in Iowa
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Many ALJs in Iowa are employed by the agency
that handles the substantive law matters
 IWD (UI and WC), Department of Corrections,
PERB board, Utilities Board
Iowa also has Central Panel of ALJs, called DIA
Administrative Hearings Division who hear a
variety of cases for agencies
 Human Services, DOT, DNR, Professional
Boards, Agriculture, Commerce, Education,
Civil Rights Commission, etc.
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Agency Enforcement Tools
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Permits and Licenses
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Administrative Searches
You must show you’ve met the standards set by law
or regulation to receive the license or permit.
 Standards must be clear.
 Must treat all applicants equally.
Conditioned on accepting enforcement standards
 Agree to be bound by the administrative rules.
 Allow inspections during business hours.
 Licenses and permits can be revoked without a
court order but statutes or due process require
that the person whose license is revoked to be
able to challenge the revocation.
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Some license and permit holders may be inspected
without a warrant if authorized by statute.
Other inspections require an administrative warrant.
Requirements for an administrative warrant.
 Unlike criminal warrants, administrative warrants do
not require probable cause of a violation .
 Inspector must show that the premises are due for an
inspection under a neutral inspection plan.
Administrative searches can’t be used when a criminal
warrant is necessary.
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Administrative Orders
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First enforcement step is to issue an order requiring
correction of a violation
 Most persons comply with order
 Order proves the person was on notice of the
problem if person doesn’t comply
 There may also be a fine for not complying with the
order
If person doesn’t comply, the agency must seek a
judicial order
 Agencies cannot make arrests or use force
 Violating court order may result in fines and
imprisonment for contempt
Public Access to Agency Information
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Open Records Laws
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Open Meetings Laws
Provides public access to information held by
agencies
Have exceptions to protect trade secrets and
information affecting agency function or public
safety
Modified by state and federal privacy laws to
protect personal information
On the federal level and in many states, law is
called Freedom of Information Act (FOIA)
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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.
On the federal level, the law is called the
Government in the Sunshine Act.
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The Iowa Public Information Board
Iowa Open Meetings and Records Laws
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Iowa’s open meetings and records laws in
Iowa Code 21 and 22 assume that
government meetings and records are
open. Meetings must be open and records
must be available for inspection unless a
law authorizes closure or makes a record
confidential.
The laws ensure that public business is
conducted in the public eye.
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Iowa Code Chapter 23 effective July 2013 created a 9member board to deal with open records and open
meetings complaints. Agency is authorized to:
 Hear complaints and issue formal opinions on whether
chapter 21 or 22 has been violated.
 Propose legislation where the laws need further
clarification.
 Make training opportunities available to all
governmental bodies, news organizations, and public.
 Issue orders with the force of law requiring compliance
with chapters 21 and 22 and issue penalties.
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Exhaustion of Remedies
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Judicial Review
Many agencies provide an internal appeals or
review process for agency decisions
 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 process is
alleged to be unconstitutional or illegal.
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Judicial Review
Iowa Code §17A.19
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Is the Agency Acting Legally?
Agency actions that impact rights, duties
or responsibilities can be reviewed
through the judicial system.
Person who is "aggrieved or adversely
affected" by an agency action—including
rulemaking and contested case
decisions—can seek judicial review.
No right to jury. The court is reviewing
the agency record regarding the action.
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Does the agency action violate the US or
state constitution?
Is action allowed by the agency's enabling
act?
Is action prohibited by other laws?
Did the agency following its own rules in
taking action?
Is the action arbitrary and capricious?
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Is the Agency Acting Legally?
Contested Case Decision
Is the Agency Acting Legally?
Rules
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For review of administrative rules:
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Is the statute authorizing the rule
constitutional?
Is promulgation of the rule authorized
expressly or by necessary implication?
Was the procedure for promulgation of the
rule followed?
Is the rule within authority of the agency
and reasonable?
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For review of contested case decisions:
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Were the parties provided due process hearing?
Did the ALJ make any improper rulings on
evidence that affected the outcome of the case?
Are there findings of fact regarding all key facts?
Are the findings supported by substantial
evidence in the record?
Did the ALJ interpret the law correctly and
properly apply the law to the facts?
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Questions?
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