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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 names—department, 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 Washington’s Government

George WashingtonPresident

John JaySecretary of State

Henry Knox Secretary of War

Alexander HamiltonSecretary of Treasury

Congress Supreme Court

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Barack Obama’s Government

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Barack Obama’s 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 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

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Periods of Bureaucratic Growth

Period Focus Key acts passed1887-90 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 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

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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:

1. Powers vested in administrative agencies

2. The requirements imposed by law for the exercise of those powers

3. 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 agency’s 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

JUDICIARYJudgments

LEGISLATUREStatutes

U.S. CONSTITUTIONBILL OF RIGHTS

EXECUTIVEExecutive Orders

GOVERNMENT “AGENCY”

Power RulemakingInvestigation

LicensingEnforcement Adjudication

MeansNotice and

Comment

Procedures

Require Records

Inspections

Subpoenas

File Petitions for

Violations of

Rules

Hear Cases

ResultsRules Regulations

Act as

Legislature

Develop

Evidence

Act as

Investigator

Prosecute

Violators

Act as

Prosecutor

Orders

Decisions

Act as Judge

PurposeTo Regulate

Private SectorTo Inform Agency To enforce rules

To Decide

Contested Cases

Government Operating Within the “Shadow of the Law”

Delegate•Powers•DutiesOversight

AppealJudicial Review

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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 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 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

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.

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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 agency’s 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?