Transcript
Page 1: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 2: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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.

Page 3: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 4: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 5: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 6: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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?

Page 7: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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))

Page 8: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 9: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 10: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 11: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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?

Page 12: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 13: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 14: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

Why Do the Courts Accept General Powers?

Efficiency Flexibility Speed Remember those dead

fish? Think about SARS,

smallpox, and the unthinkable

Page 15: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 16: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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)

Page 17: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 18: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 19: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 20: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

Permits and Licenses

Permits Licenses Rights for duties

Issued on Set Criteria Conditioned on accepting regulatory

standards Warrantless inspections

Page 21: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 22: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 23: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 24: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 25: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 26: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 27: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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

Page 28: Public Health Law as Administrative Law Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana

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?


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