Post on 14-Jan-2016
1
Administrative Law - Fall 2006
2
Introduction
3
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
4
Course WWW Site
See link: http://biotech.law.lsu.edu/Courses/adlawf06/index.htm
5
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
6
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.
7
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
8
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.
9
Organization and Control of Administrative Agencies
10
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
11
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.
12
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.
13
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.
14
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.
15
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.
16
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.
17
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?
18
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
19
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.
20
Carrying Out Agency Policy
21
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
22
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
23
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.
24
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.
25
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.
26
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.
27
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.
28
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
29
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.
30
Agency Enforcement Tools
31
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
32
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.
33
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.
34
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
35
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
36
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
37
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.
38
Judicial Review
39
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?
40
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
41
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)
42
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
43
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.
44
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
45
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
46
Public Access to Agency Information
47
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
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