Administrative Law

Administrative Law - Fall 2006

Introduction

Text • Administrative Law and Regulatory Policy, Sixth Edition by Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein (2006) - ISBN: 0735556067 • You get to see what adlaw looks like from inside the United States Supreme Court • The text focuses more on regulatory practice than jurisprudence • The text will be supplemented with more practical materials on the WWW

Course WWW Site • See link: http://biotech.law.lsu.edu/Courses/adlawf06/index.htm

Electronic Classroom Participation • We will use electronic polling devices as part of class participation • (Assuming they work) • I will issue them next class • You pick up yours at the beginning of class and drop it off at the end of class • These let you answer multiple choice questions • The answers to these questions count towards the final grade, up to plus or minus 0.3 points

Administrative Law • 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.

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 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. • APA - http://biotech.law.lsu.edu/Courses/study_aids/adlaw/551.htm

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.

Organization and Control of Administrative Agencies

What are the Roles of Agencies? • 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

Public Health as the First Administrative Law • 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.

Separation of Powers • 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.

Agencies are Established by the Legislatures • 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.

Delegation of Power to the Agency • 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.

Executive Control • 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.

Independent Agencies • 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.

Agencies are the Vehicle for Carrying out Public Policy • 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?

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 and participate in pubic hearings • Lobby the executive and legislature • Elect different politicians in the executive and legislature

Federal, State, and Local Relations • 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.

Carrying Out Agency Policy

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 • Must give the public notice of proposed rules • Must allow and consider public comment

Why Make Rules? • 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

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 consider the comments.

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.

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.

How are ALJs Different from 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.

The Adversary (Court) System • 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.

The Inquisitorial (Agency) System • 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

How are Adjudications different from Judicial Opinions? • 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.

Agency Enforcement Tools

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

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.

Administrative Searches • 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.

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 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

Court Orders • 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

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 • 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

Acting in an Emergency • 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.

Judicial Review

Standards for Judicial Review of Agency Activities • 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?

What if the Law is not Clear? • 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

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)

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

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.

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 • 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

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

Public Access to Agency Information

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

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

The Non-Delegation Doctrine - the Old Cases • Was Congress meant to be the only source of law? • Were the courts meant to be the only bodies that made trial like decisions? • The constitution is ambiguous because the founders did not foresee a large and active federal government • While the courts complained, they did not hold laws delegating power unconstitutional

The Non-Delegation Doctrine - the New Deal • Franklin Roosevelt was elected to end the Great Depression • Roosevelt was bitterly hated by many business and moneyed interests • Roosevelt was the first president to use government spending and public works to try to stimulate the economy • Roosevelt also set up agencies such as the SEC to regulate business and encouraged others such as the FCC to be more aggressive

Administrative Law - Fall 2006