1. Introduction to Administrative Law
Steven Wise
Administrative Law Judge
Iowa Workforce Development

2. 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

3. Organization and Control of Administrative Agencies

4. 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

5. 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.

6. 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

7. Types of Agencies by Structure
Executive Branch Agencies
Independent Regulatory Agencies
Government Corporations

8. 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

9. 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.

10. Modern Administrative State

11. 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.

12. George Washington’s Government
Supreme Court

13. Barack Obama’s Government

14. Barack Obama’s Government

15. 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

16. Periods of Bureaucratic Growth
Focus
Key acts passed
Control Monopolies and Rates
Interstate Commerce Act
Sherman Anti-Trust Act
Regulate product quality
Pure Food and Drug Act
Meat Inspection Act
Federal Trade Commission
Extend regulation to cover various socioeconomic areas
Food, Drug, and Cosmetics Act
National Labor Relations Act
Securities and Exchange Act
Expand regulation to make a cleaner, healthier, and fairer America
Civil Rights Act
Clean Air Act
Occupational Safety and Health Act
Deregulation movement as a reaction to bureaucratic overexpansion
Paperwork Reduction Act
Deregulation of Airline, Banking, Radio and Television Industries
present
Deregulation, reregulation, or more regulation
Communications Decency Act
Telecommunication Act
USA PATRIOT Act of 2001

17. 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

18. 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.

19. 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

20. 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.

21. Defining Administrative Law (continued)
The Executive Branch exercises control through its appointment and removal power, budget power, and authority to reorganize executive branch agencies

22. 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

23. 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.

24. 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

25. 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.

26. 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

27. Government Operating Within the “Shadow of the Law”
U.S. CONSTITUTION
BILL OF RIGHTS
LEGISLATURE
Statutes
EXECUTIVE
Executive Orders
JUDICIARY
Judgments
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
Investigator
Prosecute
Violators
Prosecutor
Orders
Decisions
Act as Judge
Purpose
To Regulate
Private Sector
To Inform Agency
To enforce rules
To Decide
Contested Cases

28. 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.

29. 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.

30. 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.”

31. 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.

32. 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?

33. 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

34. 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.

35. Carrying Out Agency Policy

36. 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

37. 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

38. 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.

39. 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.

40. 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.

41. Agency Enforcement Tools

42. 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.

43. 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.

44. 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

45. 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

46. Public Access to Agency Information

47. 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

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.
On the federal level, the law is called the Government in the Sunshine Act.

49. 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.

50. 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.

51. Judicial Review

52. 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?

53. Standards for Judicial Review of Agency Action

54. 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.

55. 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

56. 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.

57. Questions?
Thank you for your kind attention. It has been my pleasure to share my thoughts with you today.