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Administrative Agencies Defined
Introduction to Administrative Law
Steven Wise Administrative Law Judge Iowa Workforce Development
Government entities other than legislature or courts Act as agents carrying out missions assigned by statutes passed by legislature They administer the law assigned to them by legislature 2
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What are the Roles of Agencies? Organization and Control of Administrative Agencies
Agencies carry out government policy Federal Agencies HHS Department of Defense FDA State Agencies Iowa Workforce Development Iowa State U Iowa Department of Human Services Local Agencies Parks & Recreation City Clerk Finance Department Police Department
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Variety within Agencies
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Types of Agencies by Mission
Headed by single official or body of officials Agency heads usually appointed by chief executive but some state agency heads elected Varied names—department, bureau, division, section, board, office, etc.
Regulatory Agencies
Social Welfare Agencies
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Control or supervise the conduct of individuals or businesses Administer the distribution of public funds or benefits
Agencies that combine both purposes 6
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Types of Agencies by Structure
Types of Agencies by Structure
Executive Branch Agencies
Independent Regulatory Agencies
Government Corporations
Executive Branch Agencies Agency head appointed by and can be removed at will by chief executive Include cabinet-level Departments and their subdivision agencies HHS – FDA, Department of Justice – FBI, Interior Department - BIA
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Types of Agencies by Structure
Types of Agencies by Structure
Government Corporations
Independent Agencies Appointed by chief executive with Senate confirmation but removed only for cause or expiration of term EPA, CIA, SBA, NASA Includes regulatory commissions and boards
Headed by multiple-member board or commission Members of both political parties required Members have fixed, staggered terms
Corporations chartered by federal government Separate legal entity created by an Act of Congress to perform a public purpose Market-oriented product or services Some receive federal budget appropriation, others have independent revenue source FDIC, US Postal Service, TVA, CPS, Amtrak
NLRB, NRC, EPA, FCC, SEC, CPSC 9
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Modern Administrative State
Modern Administrative State
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Administrative agencies not new in US Before 1900s, US administrative system was modest in size and scope Today, administrative state is expansive in size and scope.
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Barack Obama’s Government
George Washington’s Government
Congress
John Jay Secretary of State
George Washington President
Henry Knox Secretary of War
Supreme Court
Alexander Hamilton Secretary of Treasury
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State and Local Government Growth
Barack Obama’s Government
http://www.netage.com/economics/publish/USGov.html
Growth of administrative agencies is not just at the federal level Process has occurred at a smaller scale with state and local governments State and local government have executive departments, independent boards and commissions, and government corporations 16
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STATE OF IOWA GOVERNMENT
CITY OF DES MOINES GOVERNMENT
VOTERS
BOARDS & COMMISSIONS Access Advisory Board Airport Authority Board Building and Fire Code Board Citizen Odor Board Civil Service Commission Des Moines Music Commission Historic Preservation Commission Housing Appeals Board Housing Services Board Human Rights Commission Library Board of Trustees Neighborhood Revitalization Board Park and Recreation Board Plan and Zoning Commission Power Engineers Examining Board Sister Cities Commission Skywalk Commission Traffic Safety Committee Urban Design Review Board Water Works Board Youth Advisory Board Zoning Board of Adjustment
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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
Deregulation of Airline, Banking, Radio and Television Industries Paperwork Reduction Act
1993 2001
Deregulation of telephone and cable companies and regulation of children's exposure to Internet indecency
Telecommunication Act Communications Decency Act
2001Present
Regulation to combat terrorism, address financial crisis, and implement healthcare reform
USA PATRIOT Act of 2001, Dodd-Frank Act Affordable Care Act
Broad Reach of Agencies
Think about how administrative agencies affect you during the first hour of your day
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Defining Administrative Law
1. 2.
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Defining Administrative Law (continued)
Administrative law defines the powers, procedures and limitations of administrative agencies Administrative law is divided into three parts: Powers vested in administrative agencies Procedures imposed by law for exercising powers The remedies for improper or unlawful agency action
Administrative law involves the legal checks for controlling and limiting administrative agencies’ powers 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)
Defining Administrative Law (continued)
Legislature Branch exercises political control: Standing and watchdog committees can change an agency’s statutory authority Appropriation power Confirmation power for high-level appointments Legislative review of rules Constituent services
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Executive Branch exercises political control: Appointment and removal power Budget power Authority to reorganize executive branch agencies
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Sources of Law
Defining Administrative Law (continued)
Judicial Branch has primary role in controlling administrative agencies Judicial review of review of agency actions Courts have authority to prevent unconstitutional, unlawful, and arbitrary agency actions against citizens and businesses
Constitutional Law Statutes Administrative Rules Common Law
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Types of Law
Types of Law
One way of dividing law is into categories of:
Substantive Law
Procedural Law
Substantive Law “Regulatory Law” IRS creates tax law EPA creates environmental law FCC creates communication law 28
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Types of Law
Sources of Administrative Law
Procedural Law The process used to create or enforce the substantive law Administrative agencies must follow certain procedures to take action
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Constitutional Law Statutes Administrative Rules Common Law
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Statutory Authority and Delegation
Statutory Authority and Delegation 1. 2. 3.
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10 Fundamentals Administrative agencies are creatures of legislature. They can’t be created by courts. Statute enacted by legislature creating an agency is called agency's organic act or enabling act. Agencies function as far as the legislature gives them authority. Authority given may be very broad or very narrow. Federal agencies typically given broad, general powers. State legislatures often enact more detailed agency statutes.
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Some enabling acts contain agency procedures. Agencies often gets procedures from a more general statute Federal Administrative Procedures Act, 5 USC 551 et seq. State Administrative Procedures Act, Iowa Code Chapter 17A Within limits of enabling acts, agencies make policy. Within the limits of the APA, they also set procedures for efficient and fair decisionmaking Enabling acts and APAs provide minimum requirements for agencies. Agencies have leeway to fill in the gaps-both procedural and substantive.
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Separation of Powers
Administrative Procedure Act (APA)
Set of laws in each state and the federal government specifying how agencies carry out basic functions such as rulemaking, adjudication, and how citizens can petition the agencies. APA applies if legislature has not made special rules for a given agency. Iowa APA Code chapter 17A
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Common Agency Characteristic
Separation of Powers
Constitutions of federal and state government establish structure of government. US and State Governments have three branches: Legislative Branch Executive Branch Judicial Branch Local governments merge executive and legislative powers
Government authority divided into legislative, executive, and judicial and each given to a separate, equal, and independent entity. Founders diffused these powers to guard against abuse of power and prevent governmental tyranny, Madison's famous words, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced as the very definition of tyranny."
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One identifying characteristic of a modern administrative agency is the combination of executive power (investigation/enforcement), legislative power (rulemaking). and judicial power (adjudication)
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Government Operating Within the “Shadow of the Law” U.S. CONSTITUTION BILL OF RIGHTS
Delegate •Powers •Duties Oversight
LEGISLATURE Statutes
EXECUTIVE Executive Orders
GOVERNMENT
“AGENCY”
Delegation Issue JUDICIARY Judgments
Appeal Judicial Review
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
Can Congress or state legislature delegate authority to an agency without violating the separation of powers principle found in the Constitution? Law Professor Kenneth Culp Davis: “In our theoretical discussions we should recognize that we have abandoned the basic idea that executive, legislative and judicial power should be kept separate from each other in order to protect against tyranny. We purposely combine the 3 kinds of power in administrative agencies. The protection against tyranny comes, not from separating the powers, but from our system of legislative supervision of administrative agencies and judicial review of administrative action.” 38
Delegation of Power to the Agency
Agency rules challenged as a unconstitutional delegation of rulemaking power to an administrative agency. The US Supreme Court has rejected such challenges: 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.”
Carrying Out Agency Policy
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Iowa APA Procedures
Iowa Code Chapter 17A, called the “Iowa Administrative Procedures Act” (IAPA) defines specific procedures which must be followed for carrying out agency policy: Promulgating or modifying administrative rules Regulating contested cases which are trialtype hearings Enforcement Actions Judicial review of any agency action 41
Administrative Rulemaking
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Why Make Rules?
Administrative Rules The Legislature can delegate the power to make rules to the agency Some agencies do not have rulemaking authority Rules can’t exceed the authority in the agency's enabling legislation or the Constitution Properly promulgated rules have the same force as statutes Must give the public notice of proposed rules Must allow and consider public comment
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Definition of a Rule
Public Participation in Rulemaking
IAPA §17A.2 (11) contains general definition of an administrative rule: Rule means each statement of general applicability that implements interprets or prescribes law or policy, or that describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of an existing rule IAPA §17A.2 (11) sets out 11 exclusions from the definition of a rule.
Breadth and depth of regulation today makes it difficult for legislatures to specify the details of modern regulatory schemes. Details are delegated to agencies for rulemaking. Adding scientific expertise Adding implementation detail Adding industry expertise Adding flexibility Finding compromise
Proposed rules must be published for public comment. The agency must take written comments. Federal agencies sometimes use public hearings on important policy issues. Some states require public hearings if requested by enough people (25 in Iowa). The agency must review and consider the comments.
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Iowa APA Rulemaking Procedures Iowa Code §17A.4
Iowa APA Rulemaking Procedures Iowa Code §17A.4 1.
Proposed rules published in Iowa Administrative Bulletin (IAB).
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Comment Period and Public Hearing (20-day minimum).
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Review by the Administrative Rules Review Committee (ARRC).
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Agency Adopts Final Rules (35-day minimum from NIA).
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Final Rules Published in Iowa Administrative Bulletin (IAB)
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Notice of Intended Action (NIA) is filed with the Governor’s Administrative Rules Coordinator.
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Final Rules Reviewed by the Administrative Rules Review Committee (ARRC). Final Rules Published in the Iowa Administrative Code (IAC). IAC is available at http://www.legis.iowa.gov/IowaLaw/AdminCode/adminLaw.aspx 47
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Iowa APA Rulemaking Procedures Oversight Provisions
Governor, Legislature, and Attorney General have power to influence or delay the rulemaking process.
Contested Cases - Adjudication
Objection by ARRC, Governor, or AG--§17A.4(4) Governor rescission-- §17A.4(6) Session delay by ARRC--§17A.8(10) 70-day delay by ARRC--§17A.4(5) General Referral by ARRC--§17A.8(7). Legislative veto--Iowa Constitution, Art. III, section 40. 49
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Iowa APA Contested Case Procedures
Administrative Law Judge (ALJ)
Contested case process found in Iowa IAPA §§17A.10 17A.18 Evidentiary hearing because if decision impacts an individual’s rights, duties or responsibilities Contested case similar to a judicial hearing, except that it is held before an administrative agency The presiding officer can be an administrative law judge or a designated official of the agency. No jury involved with the contested case process. Due Process protections of notice and opportunity to be heard.
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 agency. Other ALJs are authorized to make final decisions, subject to appeal.
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ALJ – Types in Iowa
Many ALJs in Iowa are employed by the agency that handles the substantive law matters IWD (UI and WC), Department of Corrections, PERB board, Utilities Board Iowa also has Central Panel of ALJs, called DIA Administrative Hearings Division who hear a variety of cases for agencies Human Services, DOT, DNR, Professional Boards, Agriculture, Commerce, Education, Civil Rights Commission, etc. 53
Agency Enforcement Tools
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Permits and Licenses
Administrative Searches
You must show you’ve met the standards set by law or regulation to receive the license or permit. Standards must be clear. Must treat all applicants equally. Conditioned on accepting enforcement standards Agree to be bound by the administrative rules. 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.
Some license and permit holders may be inspected without a warrant if authorized by statute. Other inspections require an administrative warrant. Requirements for an administrative warrant. Unlike criminal warrants, administrative warrants do not require probable cause of a violation . Inspector must show that the premises are due for an inspection under a neutral inspection plan. Administrative searches can’t be used when a criminal warrant is necessary.
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Administrative Orders
First enforcement step is to issue an order requiring correction of a violation Most persons comply with order Order proves the person was on notice of the problem if person doesn’t comply There may also be a fine for not complying with the order If person doesn’t comply, the agency must seek a judicial order Agencies cannot make arrests or use force Violating court order may result in fines and imprisonment for contempt
Public Access to Agency Information
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Open Records Laws
Open Meetings Laws
Provides public access to information held by agencies Have exceptions to protect trade secrets and information affecting agency function or public safety Modified by state and federal privacy laws to protect personal information On the federal level and in many states, law is called Freedom of Information Act (FOIA)
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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. 60
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The Iowa Public Information Board
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. 61
Iowa Code Chapter 23 effective July 2013 created a 9member board to deal with open records and open meetings complaints. Agency is authorized to: Hear complaints and issue formal opinions on whether chapter 21 or 22 has been violated. Propose legislation where the laws need further clarification. Make training opportunities available to all governmental bodies, news organizations, and public. Issue orders with the force of law requiring compliance with chapters 21 and 22 and issue penalties. 62
Exhaustion of Remedies
Judicial Review
Many agencies provide an internal appeals or review process for agency decisions 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. 64
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Judicial Review Iowa Code §17A.19
Is the Agency Acting Legally?
Agency actions that impact rights, duties or responsibilities can be reviewed through the judicial system. Person who is "aggrieved or adversely affected" by an agency action—including rulemaking and contested case decisions—can seek judicial review. No right to jury. The court is reviewing the agency record regarding the action.
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Does the agency action violate the US or state constitution? Is action allowed by the agency's enabling act? Is action prohibited by other laws? Did the agency following its own rules in taking action? Is the action arbitrary and capricious? 66
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Is the Agency Acting Legally? Contested Case Decision
Is the Agency Acting Legally? Rules
For review of administrative rules:
Is the statute authorizing the rule constitutional? Is promulgation of the rule authorized expressly or by necessary implication? Was the procedure for promulgation of the rule followed? Is the rule within authority of the agency and reasonable? 67
For review of contested case decisions:
Were the parties provided due process hearing? Did the ALJ make any improper rulings on evidence that affected the outcome of the case? Are there findings of fact regarding all key facts? Are the findings supported by substantial evidence in the record? Did the ALJ interpret the law correctly and properly apply the law to the facts? 68
Questions?
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