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Public Health Law as Administrative Law
Edward P. RichardsDirector, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of LawLouisiana State University Law Center
Baton Rouge, LA [email protected]
http://biotech.law.lsu.edu
The Public Health Law Practice Project
http://biotech.law.lsu.edu/manual/ Google Search - "Public Health Law Practice
Project" This presentation, full text of many of the cases
and reports cited in the presentation and in the appendices, and other public health law materials are available on the WWW site.
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 1798. 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, 340-41 (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?