The Evolution of Administrative and Regulatory Laws

1. The Evolution of Administrative and Regulatory Laws Institute of Regulatory Excellence January 7-9, 2008 Dusty Johnston William F. Knight

2. Administration/Regulation • When & where did it start? • What exactly is it? • Why?

3. Administration/Regulation • It’s what we do • Federal • State • County • Municipal • Unincorporated • Overlapping

4. We regulate: • Professions • People • Institutions • Organizations • Other

5. Regulation • How do we do it? • Enforcement of professional acts • Nurses, Physicians, Pharmacists, Dentist, Lawyers, etc • Administrative Procedures Act (APA) • 50 different areas • One Federal • Equal Protection • Due Process • FOIA

6. Why Regulation? • Protection • Consistency • Continuity • Standardization

7. U.S. Patriot Act • Article in New York Times • Loss of individual freedom • Concerns? • What would the founders of the U.S. Constitution have thought?

8. New York Times article concluded: • The average American: • didn’t seem to care • didn’t read it • didn’t understand which freedoms were being restricted • had NEVER read the U.S. Constitution • didn’t know the number of times the Constitution had been amended.

9. New York Times article concludes:(Cont.) • The average American: • didn’t know the number of amendments repealed • didn’t know the significance of the first 10 Amendments • The average lawyer never read it again in its entirety after passing the Bar.

10. Reason given for not reading…. • Too long • Too complicated • Didn’t know where to find a copy • Not smart enough to understand

11. My Response…. • It’s short • Easy to read • You will understand it

12. Where are we today? • 9/11 • War • Afghanistan • Iraq • Bombings: Spain, Britain • Other Middle Eastern issues • Korea – Nuclear Weapon • Terrorism world wide • U.S. Patriot Act

13. My Response…. I thought it would be good to look at Regulatory or Administrative Law and see how we got here.

14. U.S. Constitution – early history • Foundation of the Country • Foundation of our system of justice • Defines who we are as a country and people • All laws must pass Constitutional muster

15. July 4, 1776 Declaration of Independence • 13 colonies declare: • Independence • Themselves the United States of America • Two problems….. • Lack of unity • No US Constitution – yet!!

16. January 1786 • Colonies were • preparing for a constitutional convention • drafting the U.S. Constitution • Once drafted: • States had to ratify • Delaware was first to ratify • Rhode Island was 13th

17. May 25, 1787 • Done deal! • We have a constitution • We have the United States of America (13 colonies) • George Washington was elected President

18. U.S. Constitution • Three Branches of Government • Legislative Branch – Congress • Executive Branch – President • Judicial Branch – Supreme Court • Separation of Powers Doctrine • Legislative drafts laws • President signs laws • Court interpret laws

19. Marbury vs. Madison (1803) • Significant • Established the powers of U.S. Supreme Court • final word on the U.S. Constitution • not found in the Constitution • Chief Justice (John Marshall) • 1st Constitutional challenge • Chief Justice vs. U.S. President

20. U.S. Constitution • 7 Articles • Article 5 - amending the constitution • 26 Amendments • One Amendment repealed • 21st Amendment repealed the 18th Amendment (Prohibition)

21. Amendments to the Constitution • 26 Amendments • Very difficult • Intended to be difficult (no accident) • Framers Feared – “Knee Jerk” reaction • See 18th Amendment • Over 11,000 Attempts to Amend • Examples of failed attempts • ERA • Flag desecration • Abortion • English as National language • Guns • Marriage (only between man & woman)

22. Amending the U.S. Constitution • Fear of amending • Fear of the unknown • Don’t know how the U.S. Supreme Court will interpret (both conservative and liberal) • Examples: • 2nd Amendment • Guns • Do we have a constitutional right or not?

23. 1st Ten Amendments • 1st Amendment • Religion • Political freedom (free exercise clause) • Speech • Press • Right to peaceable assembly

24. 1st Ten Amendments • 2nd Amendment – Right to Bear Arms • Supreme Court has only addressed it 7 times • Supreme Court has NEVER said we have a right to bare arms as individuals • State Militias (National Guard) Why not more cases on 2nd Amendment? FEAR!

25. 1st Ten Amendments • 3rd Amendment – Quartering of Soldiers • Can’t quarter soldiers in your home in times of peace • Can quarter during war • 4th Amendment – Search & Seizure • 100’s of cases

26. 1st Ten Amendments • 5th Amendment – Criminal actions/ double jeopardy • Right not to testify • Cannot be deprived of life, liberty or property without due process of the law • Due process is not in the Declaration of Independence • Due process • Magna Carta – very limited • George Mason drafted Virginia Constitution & added it to U.S. Constitution

27. 1st Ten Amendments • 6th Amendment – Rights of Accused to: • Speedy trial • Public trial • Jury trial • Informed of charges against you • Subpoena witnesses • Right to counsel • Confront witnesses

28. 1st Ten Amendments • 7th Amendment – Jury trial in civil action • 8th Amendment – Punishment/Bail • No excessive bail or fines • No cruel & unusual punishment • Death penalty cases • 9th Amendment – Rights retained by people • Rarely used

29. 1st Ten Amendments • 10th Amendment – Rights reserved to the States • Alcohol • Marriage

30. 1st Ten Amendments • 14th Amendment • Made 1st ten amendments applicable to the States • Due process of Law • Equal protection • Bill of Rights (first ten amendments)

31. Administrative & Regulatory Law • Federal • State As regulators and citizens, we operate under both systems

32. Federal System • U.S. Constitution • Federal Criminal Laws • Criminal Code • Criminal Procedures • Federal Rules of Evidence & Procedure • Federal Civil Laws • Taxation • Bankruptcy • Contracts • Treaties

33. Federal System (cont.) • Federal Regulatory & Administrative laws have: • Numerous Federal Commissions, Agencies and Boards with regulatory authority • Power to regulate • Comes from Congress • Did/does Congress have authority to regulate? • Authority to delegate power to regulate to agency, etc

34. Federal System (cont.) • Examples of Federal Regulatory Agencies • FDA (Food & Drug Administration) • OSHA (Occupational Safety & Health Admin) • SEC (Securities and Exchange Commission) • FEC (Federal Election Commission) • EPA (Environmental Protection Agency) • FTC (Federal Trade Commission) • Medicare • Etc.

35. Federal System • Treaties • Limited to Federal government & foreign government • States • do not have right to enter into treaties with foreign governments • Contracts with other state – compact (requires legislation) • Examples: • Nurse Licensure Compact • Driver’s license • Child support • Pensions • EPA – rivers • Nuclear Waste

36. State System • Mirrors Federal system in structure • Three systems of Government • Legislative, Administrative, Judicial • Bound by • U.S. & State Constitution • U.S. & State Laws • U.S. & State Regulation • State Rules & Regulation

37. State System • State Constitution • Often provides broader rights than Federal Constitution • Often amended • Contained in volumes rather than pages • Verbose • Knee-jerk reaction (multiple amendments)

38. State System • State Constitution is modeled on: • Other State constitutions • U.S. Constitution • Articles of Confederation • British Common Law • Magna Carta

39. State System • States regulate licensed professions through • Professional Practice Act • Administrative Procedures Act • Freedom of Information Acts (FOIA) • Rules and Regulations • Other • Consent Agreements • Agreed orders • Etc.

40. State System • Administrative Procedures Act (APA) • Federal & State • Federal adopted in 1950s • States lead in the development & adoption of APAs • APAs based on U.S. & State Supreme Court case law, 5th & 14th Amendment to U.S. Constitution

41. State System • Administrative Procedures Act (cont) • Each State has their own APA • Similar but no two alike • Can vary considerably • Model APA • Some states have adopted some have not • Arkansas – no • Texas - ???

42. State System • APA: Primary Purpose • Provides minimum due process rights • Procedural • Substantive • Due process is involved when: • Someone is possibly going to be denied a right, opportunity or privilege to engage in a particular conduct or activity

43. State System • Administrative Procedures Act Created To • Establish Rules and Standards for organizations • Promote fairness and equal treatment • To avoid arbitrary decisions by Board • Example: • licensure • exam • license limited • discipline license • Probation • Suspension • Revoke

44. State Systems • APA Guarantees: • Right to counsel • Right to public hearing • Right to notice (time, place, date, notice of charges, legal authority & jurisdiction) • Right to confront witnesses • Right to “statements” to be used against you • Statement of experts

45. State System • APA Guarantees (cont.) • Evidence against you (books, papers, documents, photos, recordings, etc.) • Right to respond • Present evidence • Present argument • Right to final written decision (Findings of Fact and Conclusions of Law) • Right to appeal • Right to interpreter

46. State System • Standard of Proof • Beyond a reasonable doubt • Preponderance of evidence • Something less that the above • Arkansas – substantial • Texas - ???

47. State System • Freedom of Information Act (FOIA) • Statutory • Generally contained within APA • Both Federal & State FOIA • Tremendous variation • Arkansas is broad and sweeping – most everything • Texas Board - ???

48. State System • Freedom of Information Act (FOIA) • Can request FOIA information • In person • By phone • Written • Fax • Etc • Executive Session • Contained within most FOIA • 50 states – 50 different executive sessions • Arkansas is very limited • Texas ??

49. State System • Licensing Boards - Nursing • Statutory authority • Governed by State laws • Practice Act • Authority expressly granted • Regulate & police the profession

50. State System • Licensing Boards - Nursing • Responsibility • Protect the public • Uniformity of practice • Uniformity of educational standards • Initial and continuing professional standards • Enforcement of standards • Assist practitioners • Professionally • Education • Peer Assistance