Enforcement of administrative policy

1. Administrative Law
Enforcement of
Administrative Policy

2. Introduction
 In order to achieve its policy goals and execute the laws,
agencies must often rely upon enforcement mechanisms.
 The vast majority of enforcement administrative agencies rely
upon for compliance does not involve physical force.
 Enforcement includes agency actions which encourage
compliance with:
 The Constitution
 Statutes
 Agency rules and regulations
 Adjudicatory decisions
 Compliance – a party or parties’ actions are consistent with
the demands of the law.

3. Factors Affecting Regulatory
Compliance
 The Characteristics of Rules
 The clarity with which a rule describes the people covered by it
 The clarity with which the rule assigns responsibility to specific
individuals to enforce the rule
 The clarity of the sanction imposed for noncompliance
 The severity of the sanction
 The Characteristics of Enforcers
 The extent to which enforces in fact know it is their
responsibility to enforce
 The extent to which enforcers feel the command to enforce is
legitimate and proper
 The extent to which enforcers believe the command to enforce
is consistent with their operational objectives and ambitions.
 The capacity of enforcers to devote resources to the
enforcement task

4. Factors Affecting Regulatory
Compliance
 The Characteristics of Beneficiaries (Consumers of Products of Regulated
Businesses)
 The extent to which beneficiaries perceive the benefits they receive and the amount of
value they put on them
 The resources beneficiaries possess to promote the enforcement process
 The extent to which beneficiaries believe enforcers will listen to their specific
complaints about instances of noncompliance
 Characteristics of Regulated Parties
 The extent to which the regulated perceive a command that requires or proscribes
specific behaviors
 The extent to which the regulated define the command as legitimate and proper
 The extent to which the regulated lack resources to prevent detection and/or block
enforcement
 The benefits to the regulated of noncompliance relative to the cost of the sanction if
imposed
 The extent to which the regulated believe that the sanction will be applied once
noncompliance has been detected.

5. The Nature of Administrative
Sanctions
 Sanction – a cost imposed on a regulated party for
noncompliance.
 Section 551 of the APA defines sanctions to include:
 prohibition, requirement, limitation, or other condition
affecting the freedom of a person;
 withholding of relief;
 imposition of penalty or fine;
 destruction, taking, seizure, or withholding of property;
 assessment of damages, reimbursement, restitution,
compensation, costs, charges, or fees;
 requirement, revocation, or suspension of a license; or
 taking other compulsory or restrictive action.

6. Types of Sanctions
 Cutting Funds or Other Financial Aids
 This has largely been used in two areas:
 Education
 Desegregation
 Education funding
 Environmental policy
 Clean air
 Highway funding

7. Types of Sanctions
 Suspension and Revocation of Licenses
 Suspension and revocation of licenses – the act of a regulatory authority in temporarily or
permanently denying a licensee or permittee the right to continue to act under a license or permit
issues by a government agency.
 Many agencies are empowered to issue licenses:
 Examples:
 Nuclear Regulatory Commission
 Federal Communications Commission
 These agencies also have the power to revoke and suspend licenses, but the agency must follow
any criteria for revocation or suspension listed in the guiding statute.
 Revocation or suspension is authorized on an emergency basis when an agency determines it is
necessary in the interest of:
 Public health
 Public safety
 Public welfare
 See Section 558 of the APA
 “Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the
withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency
proceedings therefore, the licensee has been given—
 notice by the agency in writing of the facts or conduct which may warrant the action; and
 opportunity to demonstrate or achieve compliance with all lawful requirements.”
 Examples:
 Building and Environmental Permits (state and local)
 Drivers’ Licenses
 Can be revoked upon conviction of various offenses.
 Occupational and Professional Licenses
 Usually handled by a department of professional regulation.
 Parties are expected to adhere to professional standards
 In these instances, when it goes before the court, the licensee bears the burden of proof to show the agency
acted arbitrarily or illegally in the revocation or suspension.

8. Types of Sanctions
 Imposition of Administrative Fines
 Administrative fines – fines imposed by administrative
agencies on violators of regulations.
 Federal and state statutes will authorize agencies to
impose administrative fines to effectuate the purpose of a
law.
 Example:
 OSHA
 Inspectors are authorized to conduct reasonable safety and health
inspections.
 If violations are discovered, they can issue a citation and impose
a…
 Civil penalty – a fine assessed for noncriminal violation of a law or
regulation.
 These financial penalties are intended to induce compliance
through financial threats.

9. Types of Sanctions
 Cease and Desist Orders
 Cease and desist order – an order issued by a court or an
administrative agency requiring a person to stop certain
designated activities.
 The order specifies what activities the party or parties must cease.
 It imposes no civil penalties for the past behavior.
 Section 551(6) of the APA
 “The whole or a part of a final disposition, whether affirmative,
negative, injunctive, or declaratory in form, of an agency in a matter
other than rule-making but including licensing.”
 At the state level, agencies that regulate, banking, insurance,
and environmental matters are also empowered to issue cease
and desist orders.
 These orders are subject to judicial review when contested.

10. Types of Sanctions
 Criminal Prosecutions
 Although federal agencies (and generally state agencies)
generally do not have authority to initiate criminal proceedings
or seek criminal penalties in Court, they can refer the matter to:
 The Department of Justice
 State level prosecutors
 when a criminal matter is revealed in an investigation.
 Exceptions:
 Federal Trade Commission
 Internal Revenue Service
 Tax fraud
 Although they typically rely on civil penalties.
 This is not done very often, but the existence of such a tool can
act as a deterrent on potential violators of regulatory policy.

11. Types of Sanctions
 Economic Sanctions
 Lien – a claim of a right or interest in or charge against another
person’s property.
 The IRS can impose liens on property to recover unpaid taxes.
 Congress has protected people’s primary residences against liens in instances in
which the amount owed is less than $5000.
 Garnishment – Cot action requiring a party (garnishee) who is
indebted to a person to withhold payment and pay a sum over to a
creditor (garnishor) who instituted garnishment proceedings.
 Forfeiture – sacrifice of ownership of some right (usually property) as
a penalty.
 Property used in the commission of a crime are seized under forfeiture laws.
 Denial of Tax Exempt Status
 IRS (Bob Jones University)
 Agency refusal to purchase from policy violators (boycott).

12. Types of Sanctions
 Civil Suits
 Suits Initiated by Agencies
 Many federal agencies have the authority to file civil suits against violators.
 Examples:
 Civil Rights Act of 1964
 Authorizes the DOJ to file suit to vindicate citizens’ civil rights.
 These cases are often referred to the DOJ by other agencies.
 Securities and Exchange Commission
 Securities fraud
 Suits Initiated by Private Parties
 States, citizens groups and private parties can bring suits against parties to
enforce administrative rules and regulations.
 Example:
 Section 505(a) of the Clean Water Act authorizes private citizens to pursue civil
actions for injunctive relief and/or civil penalties against violators of the
conditions of NPDES permits.
 They can also bring suits against agencies.
 Decisions
 Nondecisions (Massachusetts v. EPA)

13. Methods to Encourage
Enforcement
 Consent settlements
 Advisory opinions
 Industry guides
 Cease and desist orders
 Affirmative disclosure and corrective
orders
 Companies mislead customers.

14. Environmental Defense Fund
v. Ruckelshaus, 439 F.2D 584
(D.C. Circuit Court) (1971)

15. Gwaltney of Smithfield v. Chesapeake Bay
Foundation, Inc. and Natural Resources
Defense Council, 484 U.S. 49 (1987)

16. Massachusetts v. EPA,
549 U.S. 497 (2007)