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Administrative Law - Fall 2007

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Text

Examples & Explanations: Administrative Law, by Funk, Seamon, 2nd ed., 2006, ISBN: 0735558914

Administrative Law Stories, by Strauss, 1st ed., 2006, ISBN: 1587789590

The texts will be supplemented with materials on the WWW

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Course WWW Site

See link: http://biotech.law.lsu.edu/Courses/adlaw/2007f/index.htm

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Online Participation

We will use Blackboard for quizzes during the term, assuming the technology is working

Starting on Wednesday, the course should be loaded on Blackboard.

Make sure you can log into Blackboard. Points may also be added or subtracted from the

final grade, based on class participation.

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Introduction to Administrative Law

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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.

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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 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

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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.

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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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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.

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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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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

The legislature can give the agency powers that are triggered by specific events.

Some emergency powers are triggered by a disaster declaration.

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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.

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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.

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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 diseases 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 state health departments control the local departments.

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 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

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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. Adjudications may include oral hearings. Some adjudications are done on written

documents only.

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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 There is a fight over this in LA

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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.

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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.

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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

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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.

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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

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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.

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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.

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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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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

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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 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

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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.

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Judicial Review

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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?

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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

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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)

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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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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.

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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

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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 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

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Public Access to Agency Information

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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

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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