Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Law Center Baton Rouge, LA

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What is Administrative Law? Administrative law is the law that governs agency practice Not an adversarial system Based on expert analysis and decisionmaking Not argument of counsel and rules of evidence Understanding administrative law principles is critical to effective public health practice

Public Health in the Colonies Most of the population lived in poorly drained coastal areas Cholera Yellow Fever Urban Diseases Smallpox Tuberculosis Average Life Expectancy in cities was 25 years

Public Health Law Actions in Colonial America Quarantines, areas of non-intercourse Inspection of ships and sailors Nuisance abatement Colonial governments had and used Draconian powers The Police Powers

Public Health in the Constitution Federal Powers Interstate commerce International trade and travel State Powers Powers not given to the federal government Police Powers Original Intent for Public Health Powers What was done at the time?

Actions in the 1798 Yellow Fever Epidemic For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, (1849))

Public Health as the First Administrative Law Among the first acts of Congress Public health service hospitals and quarantine stations State and Local Government Boards of Health Paul Revere sat on the Boston Board of Health Early judicial deference to agencies

The Scope of Administrative Law Governmental Organization and Function What are the agency’s powers? How is it supervised? Core public health agency functions Investigation, Reporting, and Consultation Standard Setting and Rulemaking Civil Enforcement and Adjudications

Public Health and Separation of Powers The federal and state governments are divided into three branches: Executive Branch – Enforcement Agencies Legislative Branch – Informational Agencies Judicial Branch State Law Separation of Power Issues Governors do not control other elected officials

The Political Control of Agencies Agencies carry out executive branch policy Control through the appointments process Independent agencies (Boards of Health) Legislative control Budget Statutory Direction What does this mean for judicial review?

Traditional Public Health Authority The General Grant of Power Exercised by a health officer or Board of Health The Courts deferred to agency’s expertise What judge would want to be responsible for an epidemic? Modern Administrative and Public Health Law Rejection of the Delegation Doctrine Allowed agencies to make rules

Do Health Departments Still Have General Powers? United States Supreme Court Broad authority under the constitution State Courts Less deferential under some state constitutions State and Local Legislatures May limit general powers Often do it unintentionally

Why Do the Courts Accept General Powers? Efficiency Flexibility Speed Remember those dead fish? Think about SARS, smallpox, and the unthinkable

Due Process in Public Health When do you get a hearing? Classic Food Sanitation Case - North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) Is there a Constitutional Right to a Hearing before the Health Department Acts? Is this a taking - Must the state pay for the chicken? Post-action hearings can satisfy due process Judicial protection through injunctions

The United States Supreme Court Takes a Short Detour Termination of Welfare Benefits - Goldberg v. Kelly, 397 U.S. 254 (1970) Goldberg Rights Hearing before terminating benefits Oral testimony Over reading Goldberg Limiting Goldberg Mathews v. Eldridge, 424 U.S. 319 (1976)

What if You are Locking Up People? Must there be a hearing first? Not under the US Constitution (Some states require hearings by statute) Must there be a statutory provision for a hearing? Constitutional basis for Habeas Corpus Right to contest your confinement Limiting Judicial Review Requiring Administrative Appeal

Getting Specific - Why Make Regulations? Legislature must delegate its power Regulations: Give direction to regulated parties Allow public participation Harmonize practices between jurisdictions Limiting Issues if there is Judicial Review Can be overruled by the legislature

When Agencies Make Decisions – Adjudications How is an adjudication different from a rule? Specific facts and specific parties How is an adjudication different from a trial? Expert decisionmakers Agency makes the final decision so decisions are uniform Conflict of interests can be a problem

Permits and Licenses Permits Licenses Rights for duties Issued on Set Criteria Conditioned on accepting regulatory standards Warrantless inspections

Inspections Legally classified as an adjudication License and permit holders No warrant Administrative warrants No probable cause Area warrants Limits to administrative warrants Cannot be used to undermine criminal due process

What if You Disagree with the Adjudication? The agency may not be bound by the recommendations of the administrative judge The agency can require an internal appeal The agency can set deadlines for appeals Exhaustion of remedies Required before judicial review Unless the agency has acted illegally

Judicial Review Standards is set by the legislature De novo Arbitrary or capricious No review – smallpox compensation act Cannot limit constitutional right of review Using public health powers to punish Using public health power for a taking

The Advisory and Consultative Role Public health is about prevention as well as enforcement Opening a new restaurant Designing food handling area Training kitchen personnel Managing day to day problems The major role of the CDC

Acting in an Emergency Power expands with necessity Courts do not block emergency actions Knowing what to do is what matters Emergency powers laws are easy to pass, but do not solve resource and expertise problems Law matters a month after The more laws you pass, the more loopholes you can create

The New Public Health Bioterrorism and emergency preparedness are the hot issues for the day, but we still have to deal with the changing nature of routine public health

Traditional public health authority Immediate danger Clear scientific bases for action Individual actions threaten the general public Classic cases Communicable disease control Food sanitation Water sanitation

Neo-Public Health Problems Individual problems that indirectly threaten society Smoking in private Chronic Diseases Obesity All major threats, but do they engender the same authority? How do we rethink public health law?