What Is Administrative Law?
benefit from those acknowledged in the earlier one. I continue to extend my thanks to them. I would also like to thank the reviewers who gave such thoughtful feedback on the first edition for this revision, including Bradley Bjelke (California Lutheran University), Lo- renda Ann Naylor (University of Baltimore), Stephanie Newbold (Ameri- can University), Cindy Pressley (Stephen F. Austin State University), Susan E. Zinner (Indiana University Northwest), and others who wished to re- main anonymous. Special mention should go to my American University colleague Jeffrey Lubbers, who is always generous with his time and pa- tient in sharing his encyclopedic knowledge to explain the finer points of US federal administrative law to me.
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1 What Is Administrative Law?
Introduction: What Is Administrative Law?
Administrative law can be defined as the body of constitutional provisions, statutes, court decisions, executive orders, and other official directives that, first, (a) regulate the procedures agencies use in adjudicating, rulemaking, and adopting policies, (b) control the exercise of their authority to enforce laws and regulations, and (c) govern the extent to which administration is open to public scrutiny (i.e., transparent); and, second, provide for review of agency decisions, rules, orders, policies, actions, and other aspects of their operations. In short, administrative law is the regulatory law of pub- lic administration. It regulates how public administrative agencies do what they do and why, as well as their authority to do it. As such, it is among the most important aspects of modern government. We are all affected by administrative law in myriad ways in our daily lives.
Food may present the best example of why administrative law is so important. What did you eat today? Is that all? Well, probably not. The US Food and Drug Administration (FDA) regulates the “maximum lev- els of natural or unavoidable defects in food for human use that present no health hazard.” Known as the FDA “Rat Hair List,” these regulations specify the amount of rodent hair that can be in one hundred grams of var- ious foods such as apple butter, oregano, and peanut butter. The list also regulates the number of insect fragments and eggs, milligrams of mamma- lian excreta, maggots, and other unappetizing impurities in the foods that Americans consume every day (FDA, periodic). Chocolate can have up to
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sixty insect fragments per hundred grams (about two bars) and one rodent hair. On average, Americans eat 1.2 pounds of spider eggs and 2.5 pounds of insect parts annually.1
The FDA is empowered to set such standards by law. It would have no power to do so without statutory authorization. However, it does have considerable discretion in deciding what levels are unavoidable and do not pose health hazards and what to do about products that exceed the speci- fied limits. An initial question is whether “unavoidable” should be deter- mined based on technology or economics. Although the agency maintains that some defects cannot be completely screened out, removing from pizza sauce more fly eggs and maggots than are allowed is probably technolog- ically feasible. Some producers may already do so. But is it economically feasible for the entire industry of large and small, relatively financially strong and weak firms to do so? Determining unavoidability also involves economic feasibility, which is related to the cost of producing products, their market price, and consumer demand for them. Some balance between purity and cost must be struck. The FDA seeks a desirable trade-off by testing products nationwide and determining the levels of defects present under the best production processes in use. This approach assumes that requiring investment to make the best practices even better is economically infeasible, or at least undesirable, and ultimately unnecessary because, while unappetizing, the acceptable levels are deemed safe to consume.
Safety is a second issue. Clearly, if people are not getting sick from the allowable defect levels in regulated foods, then these product levels are probably safe. Yet it is possible that the cumulative effect of the permit- ted impurities over one’s lifetime takes a toll on health, even though the harm may not be traceable to them. It is also possible that the defects af- fect people differently based on age, allergies, and other factors. No doubt, aside from looking at best production practices, the FDA takes the views of health experts and research into account in considering where to set and maintain defect levels.
A third issue is transparency. As a consumer you may wonder if the FDA’s regulations provide adequate information and protection. We are all familiar with the nutrition labels on food products sold in the United States. Peanut butter lists calories, fat calories, total fat, saturated fat, trans fat, polyunsaturated fat, monounsaturated fat, cholesterol, vitamins A and C, sodium, total carbohydrates, fiber, sugars, protein, calcium, and iron. The average number of insect fragments and rodent hairs is missing.
Data from http://www.spydersden.worldpress.com/2010/page/78; www.chacha.com/ question/does-the-average-american-really-consume-1.2-pounds-of-spider-eggs-a-year-and -eat-2.5-pounds-of-insect-parts-a-year.
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Should this be identified? Who should decide—Congress, which is elected by “We the People”; an administrative agency like the FDA, which is not; or the food industry itself? If it were decided to require information about “unavoidable defects,” would it be sufficient to indicate compliance with FDA allowable levels? Should that level be specified on the product? Should the average number of various impurities be indicated? If Congress makes such decisions, it will hold hearings and receive testimony from representatives of the food industry such as the Snack Food Association, Pizza Industry Council, US Potato Board, National Confectioners’ Associ- ation, Whole Grains Council, and other groups. If an agency makes these decisions, how should its decisionmaking process be structured? Should it be open to input from the same kinds of stakeholders, and if so, how? Regardless of where the decision is made, what role, if any, should health experts, hospitals and other care providers, health insurance companies, and consumer advocates play?
Finally, how should the FDA’s defect levels be enforced? Should the FDA test products already in the marketplace, inspect production facilities, or both? If a firm’s product exceeds the allowable defect levels, what steps should be taken? What opportunities should the firm have to contest the FDA’s finding? Such questions are the stuff of administrative law. Although they focus largely on process, as they suggest, process can affect substance.
Administrative policymaking often involves a wide range of consider- ations and complex trade-offs like those involved in establishing the FDA’s Rat Hair List. Administrators make a great number of decisions that di- rectly affect the health, safety, and welfare of the population or sections of it. They have to address difficult issues regarding transportation, envi- ronmental protection, economic practices, labor relations, and much, much more. Their decisions are of fundamental consequence to the nation’s qual- ity of life and attract a great deal of political and media attention. Equally important to our constitutional democracy, though generally less visible and interesting to the public, is how administrators should make and en- force their decisions.
The how rather than the what is the essence of administrative law. What steps should an administrator and an agency take before regulating impuri- ties in food? What values should be weighed and how heavily? How much evidence should be adduced to support agencies’ conclusions? How open to public scrutiny and participation should decisionmaking be? How should the costs and benefits of agency action be weighed? How can an agency assess the impact of greater transparency on consumers’ behavior? Would including the FDA’s allowable defect levels on nutrition labels change Americans’ diets, and if so, how—toward more or less healthful diets?
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Additional administrative law questions focus on accountability and re- view of agency decisionmaking. How should the FDA be held accountable for whatever levels it sets? Should its standards be subject to review by Congress and/or a unit within the executive branch, such as the Office of Management and Budget (OMB)? Presuming that one or more of its standards is challenged in court, should the FDA have to show statistically that its maximum levels are safe, that lower levels would not be safer, or that the defects are unavoidable? Should the data relied on to reach its decisions be available to the public? Concerns like these are the crux of administrative law, and they are of recurring importance.
For the most part, administrative law is generic in the sense that one size fits all. Although there are apt to be exceptions, it more or less applies across the board to administrative agencies within a government, as op- posed to being tailored to match each agency’s mission individually. The phrase “administrative law,” as used in the United States, makes an im- perfect distinction between the procedures agencies use to make rules, set standards, and adjudicate and the substantive content produced by those actions. In other words, how the FDA sets maximum defect levels is a mat- ter of administrative law, whereas the levels themselves are not. Similarly, how the Environmental Protection Agency (EPA) makes rules for clean air and water is a matter of administrative law; the actual regulations, such as parts per billion of arsenic allowed in groundwater, are not. The distinc- tion is imperfect because administrative law provides for judicial review of agencies’ rules, standards, and adjudicatory decisions, which may be found unlawful if their content is irrational or their scope is beyond the law. Moreover, administrative law, with the exception of some forms of adjudication, is not concerned with agency decisions regarding internal personnel, organizational, budgetary, outsourcing, and similar administra- tive matters. All levels of government in the United States rely on some form of administrative law to regulate their administrative activities. In the absence of US Supreme Court constitutional law decisions applying to all jurisdictions, the requirements of federal, state, and local administrative law need not be uniform. In fact, there is substantial variation.
Why We Have Administrative Law Statutes: Delegation and Discretion
What Is Administrative Law?