It includes the creation and funding of administrative departments and regulatory agencies. Administrative law also governs the relationships between the state administration institutions. Administrative law is a part of public law. Public health law is a branch of administrative law Jacobson et al. Public health practice is governed by the rules, procedures and principles of administrative law. As legal background, administrative law itself is a branch of public law. Skip to main content Skip to table of contents.
Administrative law governs how public health agencies implement and enforce their policies and programs at all levels of government. Specifically, administrative law guides regulation of food safety, water quality, housing conditions, pharmaceuticals and chemicals, occupational safety and health, and medical practice, among other areas.
It governs implementation and enforcement of public health policies and programs from retail licensing and lead paint inspections to quarantine orders and eligibility and disbursement decisions for public benefits like Medicaid and the Special Supplemental Nutrition Program for Women, Infants, and Children WIC. Administrative law allows federal, state, tribal, local, and territorial health agencies to exercise extensive powers over individuals and private entities.
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First and Last Name. Email Address. The court may grant an emergency injunction without hearing from the opposing party, but if it does, it will schedule a hearing as soon as possible to allow the party to be heard.
The advantage of injunctions is that the court can use its power to hold persons in contempt to force them to comply with the order. Many advocates and legal scholars oppose the use of public health decisionmaking and want all public health actions reviewed by the courts before the agency can act.
They point to this case as evidence that the United States Supreme Court no longer accepts public health actions without a prior hearing. The plaintiff in Goldberg demanded a hearing and due process protections before the state could terminate her welfare benefits. She claimed that she needed special protections because she would be hurt so badly by the termination that a post-termination hearing would deprive her of her right to be heard.
The United States Supreme Court found for the plaintiff and required the government to give her a hearing before the benefits were terminated, and set out certain rights for persons in such hearings.
These included the right to present oral testimony and to present witnesses. While this is not a public health case, many lawyers have read it as extending the right of a hearing to general public health orders.
In Mathews v. Eldridge, U. The court used a classic public health cost benefit analysis, focusing on whether the extra cost of the hearing increased the accuracy of the decision and changed the outcomes often enough to be worth doing. In almost all public health cases this test will be satisfied by a post-action hearing. The court has extended the Mathews analysis in subsequent cases. While not overruling Goldberg, the court makes it clear that Goldberg is limited to its facts.
With the subsequent revisions in the welfare laws to abolish the entitlement to welfare, it is not clear that Goldberg would even be applied in modern welfare cases. There are several types of modern public health orders against persons. Public health orders can require people to be tested for communicable diseases, to be treated for communicable diseases, or, if treatment is not sufficient or the person refuses treatment, to be confined so that they do not spread disease. Tuberculosis probably accounts for most of the orders to test, treat, or confine.
The classic case upheld the detention of prostitutes for STI testing [19] after they had been arrested on criminal charges. The federal court upheld this order as a proper exercise of public health powers and did not require a pre-detention hearing. Once the prostitutes were tested or treated, they were released. More generally, the courts have found that the constitution does not require pre-detention hearings on disease control orders unless mandated by specific laws.
Many state laws have been criticized for not proving specific provisions for due process hearings on disease control orders that allow the detention of individuals. Specific due process provisions are not necessary for a detained person to demand a hearing. The US Constitution provides for the writ of habeas corpus, the right of every person detained by government for whatever purpose to have to be brought before a judge and be allowed to contest the legality of the detention.
While there is an ongoing controversy whether this right can be suspended and when it applies to foreigners, there is no question that it applies to all public health orders.
While a person is entitled to a habeas corpus hearing, there is no right to bail for public health detentions because that would undermine the purpose of the detention. Outside of criminal law and takings and certain other areas protected by the US Constitution, the Constitution allows Congress to set the standard for judicial review of administrative actions.
Congress can allow the courts to decide cases de novo, meaning the court can ignore the agency findings. Congress can also allow certain administrative actions to be done without review by the courts. For example, the determination of smallpox compensation awards by the secretary of HHS cannot be appealed to the courts.
This legislative power to limit review can also be used to require persons seeking habeas corpus review of detention orders to submit to an administrative agency review of their claims before they can talk to a judge. Public health agencies can make rules if they are authorized by the legislature. While rulemaking is important in public health, many agencies, such as the CDC, have limited or no authority to make rules.
These agencies either do not do enforcement or enforcement statutes or rules made by other agencies. While general powers are valuable to dealing with unexpected events, they give little direction to people engaged in routine activities such as running restaurants. By adopting standards such as food sanitation code, the health department can give detailed guidance on how to prepare and serve food safely.
Regulations are usually published before they become effective and the public is allowed to comment on them. In the federal system, there is no right to a hearing on a rule unless specifically required by Congress. All comments must be made in writing. Some states require that the agency have a hearing and allow oral testimony on rules if requested by a certain number of persons.
Public comment is important for regulations that raise difficult public policy issues, such as whether volunteer organizations such as churches have to meet the same sanitary regulations as businesses. If an agency does not comply with the statutory requirements for promulgating regulations, the court can suspend the regulation until it has been properly promulgated. While most public health enforcement is local or state based, businesses operate across many jurisdictions and need consistent standards.
It is also important that public health standards reflect best practices. By adopting national standards, health departments across the country assure best practices and make it easier for national businesses to operate. Once a regulation has been properly issued, its validity cannot be challenged in court. This allows an agency to limit the grounds for challenging an agency action. Challenges to the rule must be made when the rule is promulgated, not in later litigation challenging the enforcement of the rule.
Challenges to the agency's legal authority to make the rule or the constitutionality of the rule can be made at anytime since the rule cannot be valid if the agency does not have the power to issue it. Adjudications resolve issues for specific parties and are like court trials. Rules are like statutes and apply to everyone.
Since there is generally an individual's right to be heard as part of an adjudication, but not during a rulemaking, the courts have set up standards to deciding which is which.
If the proceeding applies to all parties in the same situations, then it is a rulemaking and there is no right to a hearing. In contrast with court trials, where the judge is not supposed to know about facts being decided, agency decisionmakers are generally selected to have expertise in the subject being decided so that they can make more accurate decisions. In most situations the administrative judge or hearing officer in an adjudication does not make the final ruling but makes recommendations to the agency director who makes the final decision.
This allows the agency to make sure that all cases involving similar facts are decided the same way. This is especially important for large federal agencies which may decide hundreds of thousands of cases all over the US. In contrast, courts make decisions solely on the case before them, without reference to effect on other cases or on society in general, and often reach very different decisions on cases involving similar facts.
Many people worry that agencies are biased against regulated parties and do not give them a fair hearing. While the courts usually reject these claims of agency bias, some states have taken the adjudication powers away from the agency and put it in a central panel of administrative judges to reduce bias claims. Unfortunately, in many cases this gives up the benefit of having the cases decided by expert decisionmakers.
The right to do something once, such as the building permit for a new restaurant. If you meet the standards, you get the permit or license. This allows for planning by businesses because they know what standards they must meet. This is much more efficient for the agency than allowing a business to open without review by the agency and only allowing the agency to close the business if it can prove it is not complying with the standards. To get a license or permit you must agree to abide by the regulations of that business, to allow inspections of your business without notice or a warrant, and to keep records as required to show that you are in compliance with the appropriate rules.
For example, a restaurant is subject to inspection during normal business hours without a warrant. If the restaurant does not allow the inspector to enter, then it can be closed. Agencies have access to records that are maintained as a condition of the license or permit, without having to get a subpoena or court order. This can be very important when tracing a food borne illness outbreak or a batch of bad prescription drugs.
The inspector is the judge and investigator. The party being inspected may accompany the inspector and present his side of the case during the inspection.
The party is given a written report outlining problems and may appeal an adverse determination, such as a restaurant closing, to an administrative body or the courts. Health departments often conduct public health inspections of private residences and businesses that do not have health department permits. These may be fire inspections, rat inspections, or other general health and safety inspections. While these inspections were traditionally done without a warrant, [26] the United States Supreme Court now requires a general or area warrant if the owner objects to the inspection.
If an inspector is refused entry, the usual procedure is to seek a court order requiring compliance with the inspection.
If the owner does not comply with the court order, the court can impose contempt sanctions. Administrative warrants cannot be used as a substitute for a criminal due process warrant.
The courts have carved out certain exceptions for closely regulated business that allows prosecution for information gained through administrative searches, but these exceptions are limited. In most cases, the first appeal is to the agency, not to the courts, and is often done in writing. The review can also be to a political body, such as the appeal of food sanitation citations to the city counsel.
State and federal courts require persons who want to contest agency actions to go though the agency review process before they can go to court.
This saves the court's time and gives it a better record to review. The agency does not need to defer to the inspector or the administrative judge, it can overrule them as long as it explains why. Agency decisions can be reviewed by the courts according to the standards set by the legislature. If the regulated party believes that the action violates the Constitution or is not authorized by law, she may appeal directly to the courts.
For example, there have been many challenges to rules banning smoking in restaurants, claiming that the health department does not have the authority to issue the rule.
If the court rejects the constitutional challenge, the person has usually waived the agency appeal because she went to court before exhausting the agency process. Public health agencies, with the CDC as a prime example, provide public information to help prevent dangerous conditions. The health department can help assure that the plans will meet the sanitation code.
This is very important for small businesses which are new to food handling. The health department can help the employer train personnel who will be handling food, and can work with them to help understand the sanitary code requirements.
While the health department is often seen as an outsider that closes restaurants when it finds a problem, the health department has an important role in helping the restaurateur manage problems to protect the public and to protect the restaurant from closure or from legal claims that will result if a patron is injured by bad food. This is especially important when there is a risk a communicable diseases such as typhoid or hepatitis A being spread in the workplace by an infected employee. Starting in the colonial period, the courts have made it clear that agency power is greatest when it is dealing with imminent threats to the public health and safety, and the more people who could be affected, the greater the power to avoid harm.
The history of public health jurisprudence is one of courts finding reasons to support emergency public health actions, not one of preventing action unless it is specifically authorized by law. In cases where public health actions have been attacked as contrary to other laws, such as federal laws regulating interstate commerce, the courts have found the public health actions valid, as long as they were not shams.
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