The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts. . . . They also have begun to have important consequences on personal rights. . . . They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.
The first type of administrative agency is generally an executive department or a division of a major executive department-such as a state department of public health, the U.S. Public Health Service, or the U.S. Occupational Safety and Health Administration.' Its chief executive is appointed by, and usually serves at the pleasure of, the president or a state governor, or their cabinet-level appointees. Thus, for example, the head of OSHA is an assistant secretary of labor, who can be replaced by the secretary of labor at any time, just as the secretary can be replaced by the president at any time. Independent administrative agencies, on the other hand-such as state professional licensing boards or the Federal Trade Commission-are not considered part of the executive branch. Such agencies are usually headed by a board whose members are appointed by the president or state governor to fixed terms, set by the Congress or state legislature, and cannot be removed at the whim of the chief executive. The laws that establish such independent administrative agencies also define their functions, which often include legislative and/or judicial-like operations, along with purely ministerial tasks. Some administrative agencies that are parts of the executive branch have taken on most of the attributes of an independent agency, the Food and Drug Administration being the prime example.
A leading legal text on administrative law defines an administrative agency as ''a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule making." Whether such an agency is an executive department or an independent body, its basic function is to carry out statutory mandates. When the relevant law is clear and complete, this task involves straightforward investigation and enforcement.-' But often, the laws enacted by Congress and state legislatures are "unfinished," in the sense that legislative bodies can not foresee and deal with all the contingencies likely to develop under the new statute. Nor can they devote adequate attention and expertise to complex, technical problems. Thus the Occupational Safety and Health Act, the National Health Planning and Resources Development
Act, or the Professional Standards Review Organization Amendments, will establish a basic goal or program and leave it to the administrative agencies involved to work out specific criteria, standards, and regulations. It has been observed that "laws usually are stated in quite broad terms and are relatively permanent, while regulations usually are more detailed and are changed more frequently.""?
The keystone of this arrangement is flexibility; for example, if Congress, in enacting OSHA, had set specific noise standards for foundries or, in legislating on interstate commerce, had set rail rates for steel strapping tape, the law would have been so rigid that there would be no allowance for exceptions, variations, and the like. Administrative agencies, when they engage in decision making, can take the time to consider on a case-by-case basis how particular statutes and regulations will be applied and can change those decisions on the basis of experience.
A number of medical schools stage mock malpractice trials in order to familiarize budding health professionals with a situation they may possibly experience in the course of their practice. The fact is, however, that the health care practitioner is more likely to appear before an administrative body than in a malpractice courtroom." Public hearings to consider proposed new rules and policies are becoming more and more common. On the federal level, for example, administrative trials outnumber federal district court trials six to one.''
The output of this administrative agency activity is administrative law in the substantive sense-environmental law, occupational health and safety law, labor law, utility law, communications law, and so forth. The field of administrative law could be said to include both this substantive law, as developed by administrative agencies, and the procedural law which defines and controls the administrative process itself. The present article focuses on the procedural aspects only, as does the formal study of administrative law. Although most administrative law has been developed in the context of the independent regulatory agencies, the principles generally apply to all types of governmental administrative bodies.
Administrative agencies exist on both the federal and state levels, but slates tend to follow the federal government's lead in developing their own administrative law.
The role of administrative agencies is likely to remain dominant in the governmental structure in the future. Certainly the health practitioner's contact with the legal system is likely to occur most often at the administrative level. Whether by choice-as with testimony at rule-making hearings-or by compulsion-as with meeting relic ensure requirement-the world of the administrative agency will be close at hand. Although this world is often a cumbersome bureaucracy, it is one in which health practitioners, with a little time and effort, can learn to find their way around and make valuable contributions. Whether it be a Civil Aeronautics Board hearing on rules limiting second-hand smoke on aircraft or a state rate-setting authority considering patient education costs as a factor in establishing per diem hospital rates, health professionals will often wish to be heard. Formal testimony should offer the most convincing arguments possible; but it should also be remembered that persuasion not only consists of clearly reasoned testimony, but also depends upon the ability to indicate significant support for the position being advocated.
In the final analysis, the most meaningful external control over administrative agency activities and decisions comes from the legislature, which can:
- Restrict an agency's authority and mandate as Congress specifically restricted the FDA's authority over saccharin;
- Mandate specific action (such as congressional instructions to the FDA to regulate hazardous household substances and dangerous toys, or the requirement that all federal agencies develop environ mental impact statements as part of their decisions);
- Exercise continual supervision or periodic investigations, usually through committee hearings;
- Reduce or increase appropriations to show approval or disapproval of agency behavior;
- Influence the makeup of an agency through approval or disapproval of new appointees; and
- Intercede informally with a good word from one or more legislators on behalf of a particular issue.
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