Introduction to Administrative Law
Steven Wise
Administrative Law Judge
Iowa Workforce Development
1
Administrative Agencies

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Government entities other than
legislature or courts
Act as agents carrying out missions
assigned by statutes passed by
legislature
In short, they administer the law
assigned to them by legislature
2
Organization and Control of
Administrative Agencies
3
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
4
Variety within Agencies

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Headed by single official or body of
officials
Agency heads usually appointed by
chief executive but many state agency
heads elected
Varied names—department, bureau,
division, section, board, etc.
5
Types of Agencies by Mission

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
6
Types of Agencies by Structure

Executive Branch Agencies

Independent Regulatory Agencies

Government Corporations
7
Types of Agencies by Structure

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Executive Branch Agencies
Agency head is appointed by and can
be removed at will by chief executive
Include cabinet-level Departments and
their subdivision agencies
Include some agencies outside
departments
8
Types of Agencies by Structure
Independent Agencies

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Headed by multiple-member board or
commission
Members of both political parties required.
Members have fixed, staggered terms
Appointed by chief executive but may only be
removed for cause or expiration of term.
9
Modern Administrative State
10
Modern Administrative State


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Administrative agencies are not new
in US.
Before 1900s, US administrative
system was modest in size and scope
in terms of services and regulatory
activity
Today, administrative state is
expansive in size and scope.
11
George Washington’s Government
Congress
John Jay
Secretary of State
12
George Washington
President
Henry Knox
Secretary of War
Supreme Court
Alexander Hamilton
Secretary of Treasury
Barack Obama’s Government
13
Barack Obama’s Government
http://www.netage.com/economics/publish/USGov.html
14
Why have Agencies Grown?
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Growth of administrative government has
occurred haphazardly in response to economic,
political, and social pressures
Administrative agencies are created to deal with
current crisis or to redress economic or social
problem
Modern government’s response to public demand
for action

Create a new agency to tackle problem, or

Grant new powers to existing agency
Next slide illustrates this
15
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
Paperwork Reduction Act
Deregulation of Airline, Banking,
Radio and Television Industries
1993 present
Deregulation, reregulation, or more
regulation
Communications Decency Act
Telecommunication Act
USA PATRIOT Act of 2001
16
Broad Reach of Agencies
Think how administrative agencies
affect you during the first hour of the
day—during which you breath, bathe,
get dressed, watch, read, or listen to
the news, eat your cereal, drive to
work, and start your work—the air,
water, media, food, vehicle, and
workplace are all regulated by
administrative agencies
17
Defining Administrative Law
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1.
2.
3.
Administrative law is the body of law that defines
the powers, procedures and limitations of
administrative agencies
This definition divides administrative law into three
parts:
Powers vested in administrative agencies
The requirements imposed by law for the exercise
of those powers
The remedies for improper or unlawful agency
action.
18
Defining Administrative Law (continued)


Administrative law involves the legal
checks used to control and limit the
powers of administrative agencies,
The Legislative Branch, Executive
Branch, and Judicial Branch all
control administrative agencies in a
number of ways
19
Defining Administrative Law (continued)

The Legislature Branch exercises control
through standing and watchdog
committees that can change an agency’s
statutory authority, the appropriation
power, the confirmation power for highlevel appointments, and through
constituent services.
20
Defining Administrative Law (continued)
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The Executive Branch exercises
control through its appointment and
removal power, budget power, and
authority to reorganize executive
branch agencies
21
Defining Administrative Law (continued)

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The Judicial Branch has a primary
role in controlling administrative
agencies.
Through judicial review of agency
actions, the courts have the duty to
prevent unconstitutional, unlawful,
and arbitrary agency actions against
citizens and businesses
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22
Administrative Law


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.
23
Administrative Procedure Act
(APA)


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.
The APA applies if the legislature has
not made special rules for a given
agency. Iowa APA Code chapter 17A
24
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.
25
Common Agency Characteristics
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Mixture of powers for its mission
Agencies act like legislatures in
making rules to translate statutory
policy
Agencies execute the statutory policy
and rules made to translate that policy
Agencies act like courts in resolving
disputes that arise as they carry out
their mission
26
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”
JUDICIARY
Judgments
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
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.
28
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
 Triggered by specific events.
 Some emergency powers are triggered by a disaster
declaration.
29
Delegation of Power to the Agency

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Parties have challenged agency rules claiming that the
legislature’s delegation of rulemaking power to an administrative
agency was unconstitutional.
The US Supreme Court has repeatedly rejected such challenges:
 “Congress does not violate the Constitution merely because it
legislates in broad terms, leaving a certain degree of discretion
to executive or judicial actors. 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.”
30
Executive Control
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Federal Agencies
 All enforcement agencies are in the Executive
branch.
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.
31
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 matters do you investigate when you
have limited staff?
 What programs are cut when the budget is
cut?
32
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
33
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 local departments are independent.
34
Carrying Out Agency Policy
35
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
36
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
 OSHA Rules
Rules give the public and regulated parties guidance
Rules limit the issues that can be reviewed by the courts
37
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.
38
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 as required by due process and APA.
 Adjudications may include oral hearings.
 Some adjudications are done on written
documents only.
39
Administrative Law Judge (ALJ)
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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
the agency. Other ALJs are authorized
to make final decisions, subject to
appeal.
40
Agency Enforcement Tools
41
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 but statutes or due process require that the
person whose license is revoked to be able to
challenge the revocation.
42
Administrative Searches
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Some license and permit holders may be inspected
without a warrant if authorized by statute.
Other inspections may require an administrative warrant.
Requirements for an administrative warrant.
 Unlike criminal warrants, administrative warrants do
not require probable cause of a violation .
 The inspector will have to show that the premises are
due for an inspection under a neutral inspection plan.
Administrative searches cannot be used when a criminal
warrant is necessary.
43
Administrative Orders


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
44
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 Center for Disease Control 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
45
Public Access to Agency Information
46
Freedom of Information Acts
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Provides 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
47
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.
On the federal level, the law is called the
Government in the Sunshine Act.
48
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.
49
The Iowa Public Information Board

Iowa Code Chapter 23 effective July of 2013 created a
9-member board to deal with open records and open
meetings complaints. The agency is authorized to:
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Hear complaints and issue formal opinions as to whether there
has been a violation of chapter 21 or 22.
Propose legislation where the laws need further clarification.
Make training opportunities available to all governmental
bodies, news organizations and the public.
Issue orders with the force of law requiring compliance with
chapters 21 and 22 and issue penalties.
50
Judicial Review
51
Is the Agency Acting Legally?
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Does the activity violate the US constitution ?
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?
52
Standards for Judicial Review of Agency Action
53
What if the Law is not Clear?
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Many laws give the agency broad powers without
detailed statutory guidance.
Federal courts use a standard from an environmental law
case, Chevron v. NRDC, to decide if the agency
interpretation of a statute in a rule is proper.
 The first question is whether Congress in the statute
has expressed its opinion on the issue in question. If
so that opinion is binding.
 If the statute is ambiguous on issue addressed by the
rule, the Court must decide if the agency’s
interpretation is reasonable giving deference to the
Agency.
54
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
55
Exhaustion of Remedies

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 process is
alleged to be unconstitutional or illegal.
56
Questions?
57