Introduction to Administrative Law

1. Introduction to Administrative Law Steven Wise Administrative Law Judge Iowa Workforce Development

2. Administrative Agencies • 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

3. Organization and Control of Administrative Agencies

4. 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

5. Variety within Agencies • 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.

6. Types of Agencies by Mission • Regulatory Agencies • Control or supervise the conduct of individuals or businesses • Social Welfare Agencies • Administer the distribution of public funds or benefits • Agencies that combine both purposes

7. Types of Agencies by Structure • Executive Branch Agencies • Independent Regulatory Agencies • Government Corporations

8. Types of Agencies by Structure 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

9. Types of Agencies by Structure Independent Agencies • 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.

10. Modern Administrative State

11. Modern Administrative State • 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.

12. George Washington’s Government Supreme Court

13. Barack Obama’s Government

14. Barack Obama’s Government http://www.netage.com/economics/publish/USGov.html

15. Why have Agencies Grown? • 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

16. Periods of Bureaucratic Growth

17. 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

18. Defining Administrative Law • 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.

19. 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

20. 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 high-level appointments, and through constituent services.

21. Defining Administrative Law (continued) • The Executive Branch exercises control through its appointment and removal power, budget power, and authority to reorganize executive branch agencies

22. Defining Administrative Law (continued) • 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

23. 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.

24. 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

25. 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.

26. Common Agency Characteristics 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

27. Government Operating Within the “Shadow of the Law” U.S. CONSTITUTION BILL OF RIGHTS EXECUTIVE Executive Orders JUDICIARY Judgments LEGISLATURE Statutes • Delegate • Powers • Duties • Oversight Appeal Judicial Review GOVERNMENT “AGENCY”

28. 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.

29. 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 • Triggered by specific events. • Some emergency powers are triggered by a disaster declaration.

30. Delegation of Power to the Agency • 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 Toubycase, 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.”

31. Executive Control • 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.

32. 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 matters do you investigate when you have limited staff? • What programs are cut when the budget is cut?

33. 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

34. 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 adopting certain policies. • States have different models of local control • The legislature determines the allocation of powers. • Some local departments are independent.

35. Carrying Out Agency Policy

36. 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

37. Why Make Rules? • 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

38. 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.

39. 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 as required by due process and APA. • Adjudications may include oral hearings. • Some adjudications are done on written documents only.

40. Administrative Law Judge (ALJ) • 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.

41. Agency Enforcement Tools

42. 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 but statutes or due process require that the person whose license is revoked to be able to challenge the revocation.

43. Administrative Searches • 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.

44. 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

45. 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 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

46. Public Access to Agency Information

47. Freedom of Information Acts • 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

48. 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. • On the federal level, the law is called the Government in the Sunshine Act.

49. Iowa Open Meetings and Records Laws • 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.

50. 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: • 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.