Introduction to Administrative Law

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Introduction to Administrative Law

• Steven Wise
• Administrative Law Judge
• Iowa Workforce Development

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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

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Organization and Control of Administrative
Agencies
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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

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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 namesdepartment, bureau, division,
  section, board, etc.

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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

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Types of Agencies by Structure

• Executive Branch Agencies
• Independent Regulatory Agencies
• Government Corporations

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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

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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.

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Modern Administrative State
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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.

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George Washingtons Government
Supreme Court
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Barack Obamas Government
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Barack Obamas Government
http//www.netage.com/economics/publish/USGov.html
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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 governments response to public demand for
  action
• Create a new agency to tackle problem, or
• Grant new powers to existing agency
• Next slide illustrates this

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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
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Broad Reach of Agencies

• Think how administrative agencies affect you
  during the first hour of the dayduring which you
  breath, bathe, get dressed, watch, read, or
  listen to the news, eat your cereal, drive to
  work, and start your workthe air, water, media,
  food, vehicle, and workplace are all regulated by
  administrative agencies

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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.

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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

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Defining Administrative Law (continued)

• The Legislature Branch exercises control through
  standing and watchdog committees that can change
  an agencys statutory authority, the
  appropriation power, the confirmation power for
  high-level appointments, and through constituent
  services.

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Defining Administrative Law (continued)

• The Executive Branch exercises control through
  its appointment and removal power, budget power,
  and authority to reorganize executive branch
  agencies

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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

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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.

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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

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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.

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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

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Government Operating Within the Shadow of the
Law
U.S. CONSTITUTION BILL OF RIGHTS
JUDICIARY Judgments
EXECUTIVE Executive Orders
LEGISLATURE Statutes

• Delegate
• Powers
• Duties
• Oversight

Appeal Judicial Review
GOVERNMENT AGENCY
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
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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.

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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.

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Delegation of Power to the Agency

• Parties have challenged agency rules claiming
  that the legislatures 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.

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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.

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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?

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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

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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.

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Carrying Out Agency Policy
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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

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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

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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.

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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.

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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.

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Agency Enforcement Tools
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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.

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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.

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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

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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

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Public Access to Agency Information
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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

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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.

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Iowa Open Meetings and Records Laws

• Iowas 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.

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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.

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Judicial Review
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Is the Agency Acting Legally?

• 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?

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Standards for Judicial Review of Agency Action
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What if the Law is not Clear?

• 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 agencys
  interpretation is reasonable giving deference to
  the Agency.

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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

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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.

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Questions?