Introduction to Administrative Law For International LL.M. Students

1. Introduction to Administrative LawFor International LL.M. Students Edward P. Richards

2. Administrative Law • Administrative law governs the organization and functioning of government agencies, and how their actions are reviewed by the courts.  • Administrative law is the heart of the modern state, and keeps life from being nasty, brutish, and short.

3. Cross-Cultural View • The US administrative law system has many parallels with non-Louisiana civil law systems • An emphasis on codes, rather than case precedent • Inquisitorial rather than adversarial adjudications • The combination of functions in a single agency, rather than in different branches of government

4. Administrative Law Background • As I found working with our foreign students, non-US law schools put a much higher priority on administrative law teaching • I will focus on the structure of the US system, but assume you understand the basics of agency functions

5. Separation of Powers • The US and State Governments are divided Into three branches: • Legislative Branch • Executive Branch • Judicial Branch • State governments follow the three branch model, but with significant differences • Federal laws and the constitution preempt conflicting state laws • The Constitution preempts conflicting federal laws

6. Agencies and Separation of Powers • The US Constitution is mostly silent on agencies • The courts wrestled with agency powers for many years because agencies exercise the powers of all three branches of government • This was resolved in the 1930s and the courts no longer question the hybrid role of agencies

7. Agencies are Established by the Legislature • 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 constitutional amendments.

8. Delegation of Power to the Agency • General Grant of Power • Specific Grants of Power • Contingent Grants of Power • The Legislature cannot grant the agency more power than the legislature itself can exercise

9. Executive Control in the Federal Government • All enforcement agencies are in the Executive branch. • Enforcement can include orders to comply with the law, fines, and criminal prosecution • Congress can control agencies that only do studies and investigations, such as the Congressional Budget Office or the Library of Congress

10. Executive Control in the States • 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. • Some states even allow legislative agencies with enforcement powers

11. Legislative Oversight of Agency Appointments • The US Constitution provides that the senate must approve the appointment of officers of the United States • The heads of most executive branch agencies, and some of their subordinates, are officers of the United States and thus must be approved by the Senate • The Federal Election Commission controversy • The current impasse in Congress

12. Removal of Agency Heads • Most agency directors in the state and federal system serve at the pleasure of the executive • This is a major source of executive control over agencies • Some agencies, called independent agencies, are run by boards or commissions. • Members have fixed, staggered terms and can only be removed for bad conduct • This limits executive control and gives the agency some independence from political pressure

13. Non-Agencies and Administrative Law • 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.

14. Agencies are the Vehicle for Carrying out Political Policy • Enforcement policy • When does a business get a second chance and when do they get closed for violating regulations? • 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? • Changes of government can profoundly change agencies

15. Changing Agency Policy • 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 regulations • Participate in pubic hearings • Lobby the executive and legislature • Elect different politicians in the executive and legislature

16. Carrying Out Agency Policy

17. 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. • APAs were first adopted post-WWII • The APA only applies if the legislature has not made special rules for a given agency.

18. Administrative Rules • 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

19. Why Make Rules? • Legislatures do not have the expertise or the time to legislate in technical areas • 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

20. Public Participation in Rulemaking • 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 respond to the comments.

21. When Agencies Make Decisions - Adjudications • 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.

22. Administrative Law Judge (ALJ) • 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 • Some states give more power to ALJs in the name of fairness • There is a fight over this in LA

23. Article III Judges Protections Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline Why do we have these protections? How are state judges different? ALJs Civil service protections Can be fired Can have salary lowered, but hard to do this Can set work standards and discipline How are the pressures different than those on an Article III judge? What about contract ALJs that some states use? ALJs versus Article III Judges

24. How are the expectation for ALJs Different from Article III Judges? • 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.

25. Agency ALJs v. Central Panel ALJs • All federal and many state ALJs are part of the agency • Decide the same type of cases all the time • May be hired for their expertise • Will develop expertise • Central Panels • Not part of the agency • No expertise • Trades off the value of expertise for "fairness"

26. How are Adjudications different from Judicial Opinions? • ALJs are primarily fact finders. • ALJs often follow Attorney General Opinions. • Judges 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.

27. Agency Enforcement Tools

28. Permits and Licenses • 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

29. Administrative Searches • License and permit holders may be inspected without a warrant. • Other inspections may require an administrative warrant. • Requirements for an administrative warrant. • No probable cause. • Must show the reason for the search and the locations • Administrative searches cannot be used when a criminal warrant is necessary. • Special rules for national security law

30. Inspections are Adjudications • 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.

31. 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

32. Enforcement of Agency Orders • If the target of the order does not comply, then the department must seek a judicial order to force compliance • Most agencies don't make arrests or use force • Some agencies do have police and prosecutors

33. Court Orders • In many cases the agency must ask the court to issue orders to enforce agency regulations or adjudications • Injunctions • Orders to prevent an actions, such as operating a restaurant • Temporary injunctions • Permanent injunctions • Personal restriction orders • These order individuals to refrain from dangerous behavior

34. The Advisory and Consultative Role • 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

35. Public Health Examples • 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

36. Judicial Review

37. Is the Agency Acting Legally? • 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?

38. The Legislature Sets the Standard for Judicial Review of Facts • 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 - Most Common • 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

39. Courts Defer to Agency Policy Decisions • "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)

40. Why Do the Courts Defer to the Agency? • 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 • Separation of Powers • The courts should not usurp the executive's power to make policy.

41. What if the Law is not Clear? • 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 • Is the law ever clear if the court does not like the agency action?

42. Can the Court Change the Agency Decision? • 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.

43. 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 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

44. Public Access to Agency Information

45. Freedom of Information Acts • 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

46. Open Meetings Laws • 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