REGULATORY AND ADMINISTRATIVE AGENCIES

REGULATORY AND ADMINISTRATIVE AGENCIES

The modern chief executive sits atop a massive bureaucracy — a panoply of departments, boards, commissions, and other agencies. These agencies have various functions. Some are law enforcement agencies that serve to investigate crimes, apprehend offenders, and assist in their prosecution. Others are purely administrative agencies — their job is to carry out government programs like Social Security, Medicaid, or public housing programs. Still others are regulatory agencies, whose role is to create and enforce regulations in specific policy areas. They do this by invoking authority granted to them by the legislature, which has delegated power to agencies to act as, in effect, miniature legislatures. For instance, Congress has created the Environmental Protection Agency and vested it with the authority to make and enforce regulations to give specific content to the nation’s environmental laws. In making these regulations, the EPA and other regulatory agencies follow a rulemaking procedure outlined by Congress.

Agencies vary not only in their functions but also in their relationship to the chief executive. Most agencies are located within the major departments of the executive branch, which means that the President or governor has a good deal of control over them. Others, called independent agencies, are freestanding entities over which presidents and governors have less control. These agencies typically are directed by boards whose members are appointed for set terms of office and can only be removed for good cause. Of course, there are mechanisms by which legislative bodies and chief executives can control the decisions of independent agencies, for example, through the budgetary process. All of the legal issues pertaining to the functions and processes of administrative and regulatory agencies are the subject of administrative law, which is dealt with in some detail in Chapter 7.

LAW ENFORCEMENT AGENCIES

In the United States today, there are approximately 18,000 federal, state, and local law enforcement agencies. Located within the executive branches of local, state, and federal governments, these agencies have the power to investigate criminal activity, to arrest suspects, and to detain arrested persons until their cases come before the appropriate courts of law. These agencies also play an important role in gathering evidence that prosecutors use in obtaining convictions. In addition to officers’ testimony, these agencies provide arrest reports, statements made by persons who file complaints, witnesses’ identification of perpetrators from lineups or mug shots, and many different types of forensic evidence obtained from victims or from crime scenes.

The role of law enforcement agencies goes well beyond investigating crime, arresting suspects, and assisting prosecutors. Society expects these agencies to prevent crimes from occurring, which is a much more demanding assignment. It also expects these agencies, especially those at the local level, to maintain public peace and order, a function that requires discretion and diplomacy and, when required, force and coercion. And, increasingly, under the rubric of community-oriented policing, law

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enforcement agencies are being viewed as social services agencies that must provide assistance to people in need and assist in resolving conflicts.

In carrying out their assigned functions, law enforcement agencies are subject to the limitations of the federal and state constitutions, in particular those clauses that protect citizens against unreasonable searches and seizures, arbitrary arrests, prolonged detentions, coerced confessions, and police brutality (see Chapter 13). In some instances, police misconduct may constitute a tort (see Chapter 8); in other instances, it may even be criminal (see Chapter 6). In this country, we expect law enforcement to abide by the rule of law even as it enforces the law. Of course, this does not always happen in practice, but when police violate the law, they, too, are subject to sanctions. They can be disciplined by internal affairs authorities within their agencies; they can be subject to civil suit and even prosecuted for crimes. Such was the case with four Los Angeles police officers who participated in the beating of Rodney King during an arrest in 1991. Although the officers were acquitted of criminal charges in state court, a federal grand jury indicted them under the federal civil rights laws. In 1993, a trial jury returned verdicts of guilty against two of the officers; the other two were acquitted. The two convicted officers were sentenced to thirty months in federal prison.58

Federal Agencies

There are more than eighty federal agencies that have law enforcement authority, including the Environmental Protection Agency, the Internal Revenue Service, the Bureau of Indian Affairs, the Federal Bureau of Prisons, the U.S. Postal Inspection Service, the Tennessee Valley Authority, the National Park Service, the U.S. Forest Service, the U.S. Capitol Police, the U.S. Fish and Wildlife Service, and the U.S. Mint. As of 2016, there were approximately 132,000 federal law enforcement officers.59

The U.S. Marshals Service

The oldest federal law enforcement agency is the U.S. Marshals Service, which was established by Congress in 1789. For most of the nineteenth century, federal marshals were the only law enforcement authorities on the western frontier. Today, federal marshals are responsible for executing warrants issued by federal courts, pursuing and arresting federal fugitives, transporting federal prisoners, and protecting federal judges and witnesses.

The FBI

The Federal Bureau of Investigation is the primary agency empowered to investigate violations of federal criminal laws. Located in the Department of Justice, the FBI is by far the most powerful of the federal law enforcement agencies, with broad powers to enforce the many criminal laws adopted by Congress. The FBI is perhaps best known for its Ten Most Wanted Fugitives program, which was inaugurated by the FBI’s longtime Director, J. Edgar Hoover, in 1950. In the 1950s, the Ten Most Wanted list mainly included bank robbers and car thieves. Today, it features alleged terrorists, serial killers, international drug dealers, and organized crime kingpins.

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Under J. Edgar Hoover, who served as Director from 1924 until his death in 1972, the FBI was often excessive in its zeal to enforce federal law and protect national security. In the 1950s, the FBI concentrated on the “Communist menace.” In the 1960s, it turned its attention to the more radical elements of the antiwar movement. On numerous occasions, the FBI was accused of exceeding the limits of the law and infringing the rights of citizens. Today, the FBI operates under tighter legal constraints, the result of congressional action, judicial decisions, and cultural changes within the agency itself.

Although its history is somewhat checkered, the FBI generally is regarded today as embodying the highest standards of professionalism in the law enforcement community. The FBI currently employs approximately 35,000 people, including more than ten thousand Special Agents spread out over fifty-six field offices in the United States and numerous foreign offices known as legats. The FBI uses the most sophisticated methods in crime prevention and investigation. Its crime laboratory even assists state and federal law enforcement agencies; thus, it figures prominently in the prosecution of numerous crimes.

The Secret Service

Most students know that the Secret Service protects the President and Vice President of the United States, their families, presidential candidates, and visiting heads of state. Many are not aware that the Secret Service also has an important law enforcement function. Currently located within the Department of Homeland Security, the Secret Service was created by Congress in 1865 for the purpose of preventing the counterfeiting of paper money, which had been introduced in this country during the Civil War. It was not until after the assassination of President William McKinley in 1901 that the Secret Service was assigned the function of protecting the President. Today, the Secret Service enforces federal laws against forgery of federal government checks and bonds. It also investigates credit and debit card fraud, computer fraud, and electronic fund transfer fraud.60

ATF and Federal Gun Control Laws

Another well-known but more controversial federal law enforcement agency is the Bureau of Alcohol, Tobacco, Firearms, and Explosives (commonly known as the ATF). Located within the Department of Treasury, the ATF enforces federal laws pertaining to alcohol, tobacco, guns, and explosives. With respect to alcoholic beverages, the ATF regulates distilleries, wineries, and breweries as well as importers and wholesalers. Regarding tobacco, the ATF collects federal excise taxes on cigarettes and other tobacco products. It also licenses the manufacture and importation of such products. With regard to firearms, the ATF enforces the regime of federal gun control laws. It was the exercise of this function that ultimately led to the catastrophic encounter between the ATF and the Branch Davidians in Waco, Texas, in April 1993. It was then that many Americans first became aware of the ATF and its law enforcement activities. The allegation that tear gas canisters fired by federal agents started the fire that destroyed the Branch Davidians’ compound and killed eighty members of their group led to congressional investigations that exonerated federal agents. But the public’s perception of the ATF was nevertheless marred.

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Today, a debate rages over the adequacy of current federal gun control legislation. Advocates of gun control support tougher and more extensive federal gun laws. Others argue that existing laws need to be more vigorously enforced. The ATF contends that it needs more resources to enforce existing laws, but if new laws are passed, the responsibility for enforcing them will fall on the ATF, regardless of whether it gets additional resources.

Federal Agencies at the Front Line of the War on Drugs

In the 1980s, the federal government declared a “war on drugs.” Congress toughened the criminal laws prohibiting drug offenses; various federal agencies instituted drug-testing programs for their employees; efforts at interdiction were stepped up; more money was appropriated to fund agencies to enforce the drug laws; and a Drug Czar was appointed to coordinate federal policy and programs. Of course, despite some success in stemming the tide of illegal drugs flowing into this country and in curtailing the consumption of illicit drugs by the American public, the drug problem remains an epidemic. In recent years, many people have questioned the efficacy of the war on drugs; others have lamented the increased intrusiveness of law enforcement as it tries to ferret out drug smugglers, dealers, and users. Still others have questioned the wisdom of incarcerating nonviolent drug users along with violent criminals.

At the front lines of the war on drugs is the Drug Enforcement Administration (DEA), which was established in 1973. Located within the Department of Justice, the DEA has approximately 10,000 employees, including special agents and investigators. Its mission is to enforce federal drug laws and provide assistance to other federal agencies, such as the Immigration and Customs Enforcement (ICE), as well as state and local authorities involved in the war on drugs. The DEA’s total budget for the 2021 fiscal year was $3.28 billion.61 In 2020, the DEA made 26,264 domestic arrests.62 Recent changes in many state laws allowing for the medical and/or recreational use of cannabis have complicated the role of the DEA in enforcing the federal prohibition of marijuana at the state level.

Federal Immigration Enforcement Agencies

After the terrorist attacks of September 11, 2001, Congress created the Department of Homeland Security and, within it, three new agencies to enforce federal immigration law. U.S. Customs and Border Protection (USCBP) includes the Border Patrol, which attempts to stop illegal immigration at the nation’s borders. U.S. Citizenship and Immigration Services (USCIS) deals with immigrant visas, work permits, and applications for asylum and refugee status. Immigration and Customs Enforcement (ICE) is responsible for apprehending those who have entered the country illegally. Today, the focus of ICE attention is the prevention of illegal immigration from Mexico and Central America, as people looking to improve their economic conditions and escape political violence have streamed across the porous southern border. ICE is also a key component of the federal government’s Joint Terrorism Task Force, and plays a role in stemming the flow of illegal drugs into the United States.

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State and Local Agencies

All fifty states have their own law enforcement agencies, although the agencies vary quite a bit in how they are organized. Some states have their own counterpart to the FBI. For example, the Oklahoma Bureau of Investigation works with local law enforcement agencies to investigate crimes. Its criminalistics division provides forensic analysis, including drug and alcohol testing, toxicology, fingerprints, DNA sampling, and ballistics. It also serves as the central repository for crime data and criminal history information. The principal statewide law enforcement agency in Oklahoma is the Highway Patrol, which is responsible for policing all state highways as well as lake and river shorelines. By way of contrast, Illinois has combined the investigative, enforcement, and forensic functions into one comprehensive agency: the Illinois State Police. In most states, there are multiple agencies charged with law enforcement in specific areas such as traffic safety, agricultural importation, casino gambling, alcoholic beverages, and hunting and fishing.

County Sheriffs

At the local level, we find both county and municipal law enforcement agencies. Nearly every county in America has a sheriff. The institution of sheriff dates from the reign of Alfred the Great in ninth century England. The kingdom was divided into “shires,” which eventually became counties. The “shire reeve” was appointed by the King to represent the King in local affairs. As the English legal system evolved, sheriffs came to be responsible for arresting and detaining persons accused of crimes, serving summonses and subpoenas, and maintaining jails and workhouses. The institution of county sheriff was brought to America by the colonists. Early on, sheriffs were appointed by governors. In the early nineteenth century, states made this position elective, as it remains today. In some areas, particularly the urban Northeast, many of the powers traditionally exercised by sheriffs have been assumed by state or metropolitan police forces. However, in the rest of the country, especially in rural areas, sheriffs (and their deputies) are the principal law enforcement agents at the county level.

Municipal Law Enforcement Agencies

The idea that a city should have its own professional police force is typically credited to Sir Robert Peel, who in 1829 persuaded Parliament to establish a metropolitan police force for the city of London.63 Soon, cities throughout the world emulated London’s example. Currently, more than 20,000 cities and towns in the United States have their own police departments. Local police are charged with enforcing the criminal laws of their states as well as the ordinances enacted by their municipalities. Although the county sheriff usually has jurisdiction within the municipalities of the county, generally the sheriff concentrates enforcement efforts on those areas outside municipal boundaries.

Historically, police officers in America were provided little in the way of formal job training. In the latter half of the twentieth century, law enforcement became much more professional. Most states now have standards for certification of officers

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based on their completion of training programs and meeting certain standards. Often, attainment of these standards is the key to promotion. Increasingly, modern police agencies are seeking candidates who have completed college-level courses in criminal justice and other social sciences. Some police agencies even subsidize community-college-level courses for in-service officers.

PROSECUTORIAL AGENCIES

While law enforcement agencies are the “gatekeepers” of the criminal justice system, prosecutors are central to the administration of criminal justice. They determine whether to bring charges against suspected criminals. They have enormous prosecutorial discretion, not only in determining whether to prosecute but also in determining what charges to file. Moreover, prosecutors frequently set the tone for plea bargaining and have a powerful voice in determining the severity of sanctions imposed on persons convicted of crimes. Accordingly, prosecutors play a crucial role in the criminal justice system.

The chief prosecutor at the federal level is the Attorney General, who is the head of the Department of Justice. The Attorney General is appointed by the President, subject to the consent of the Senate, and serves at the pleasure of the President. Below the Attorney General are the United States Attorneys, each responsible for prosecuting crimes within a particular federal district. There is one U.S. Attorney for each of the ninety-four federal judicial districts. Like the Attorney General, U.S. Attorneys are appointed by the President, with the consent of the Senate, to serve four-year terms of office; but, they can be fired by a President at any time. U.S. Attorneys, in turn, have a number of assistants who handle most of the day-to-day criminal cases brought by the federal government. The assistant U.S. Attorneys are federal civil service employees who acquire their positions through a merit-based application process.

Special Prosecutors

In addition to the regular federal prosecutors, Congress has provided for the appointment of “special prosecutors” in cases involving alleged misconduct by high government officials. By far the most infamous such case was the Watergate scandal of 1972-1974, which resulted in the convictions of several high-ranking officials and the resignation of a president. In 1978, Congress passed a law allowing a panel of federal judges to appoint an independent counsel to investigate official misconduct. The best-known example of this was the appointment of former federal judge Kenneth Starr to investigate the Whitewater scandal that involved close associates of President Bill Clinton and First Lady Hillary Rodham Clinton. This evolved into an investigation of sexual misconduct by President Clinton. In 1998, Starr alleged, among other things, that President Clinton had given false and misleading statements to a federal grand jury. This led to President Clinton’s impeachment by the House of Representatives, although he was acquitted after trial in the Senate.

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State and Local Prosecutors

Each state likewise has its own attorney general and a number of assistant attorneys general, plus a number of district or state’s attorneys at the local level. State attorneys general are the top legal officials in their respective states. They offer interpretations of state law, represent their states in court, and offer legal advice to governors, state legislatures, and state agencies. Most state attorneys general are elected officials. Generally, criminal prosecutions under state laws are initiated by district attorneys or state’s attorneys at the local level. Generally speaking, these local prosecutors are elected for set terms of office. In most states, prosecutors act autonomously and possess broad discretionary powers. Cities and counties also have their own attorneys. These attorneys sometimes prosecute violations of city and county ordinances, but increasingly their function is limited to representing their cities or counties in civil suits and giving legal advice to local councils and officials. These city and county attorneys generally are appointed by the governing bodies they represent.

THE LEGAL PROFESSION

As we noted in Chapter 1, the American legal profession has its roots in English common law practice. In England, trial lawyers were (and are) called “barristers,” while attorneys who provided other legal services were (and are) known as “solicitors.” In the United States, we do not use that nomenclature, although the distinction between “trial lawyer” and “office lawyer” remains relevant. Indeed, lawyers in the United States have become extremely specialized. As in medicine, the general practitioner is becoming increasingly rare. Lawyers today specialize in torts, estate planning, taxation, civil rights, contracts, real estate, criminal defense work, and every other conceivable area of the law.

Legal Education and Admission to the Bar

About half the Framers of the U.S. Constitution were lawyers who “read law” and served apprenticeships with those who practiced law. A few states still allow some alternatives to formal study at a law school, but even where permitted, this option is infrequently exercised. Most commonly, the path to becoming a lawyer today is to successfully complete a three-year course from one of the approximately two hundred law schools accredited by the American Bar Association.64 Indeed, all but a few states now require that to take a bar examination for admission to the practice of law an applicant must possess a Juris Doctor (J.D.) degree. Prior to the 1960s, law schools awarded graduates a Bachelor of Laws (LL.B.) degree.

The number of applicants who annually seek admission to law schools has leveled off somewhat from the vast increase that occurred from the late 1960s to the 1970s, a time of social upheaval when many students were inspired to channel social and economic changes through law. A prospective law student must have a four-year college degree and generally score well on a Law School Aptitude Test (LSAT) and have

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a credible grade point average (GPA). Law schools are selective but do not demand that pre-legal education be in a particular field. Business, history, political science, and economics have been popular undergraduate majors for prospective law students. Admission committees often employ various criteria beyond LSAT and GPA scores to enroll a diverse group. Prior to 1960, women and minority students represented a very small percentage of law students. Today, they represent a substantial percentage of the enrollment in most law schools.

Law schools usually require completion of basic courses in contracts, property, torts, criminal law, civil procedure, constitutional law, legal research and writing, evidence, and professional responsibility. Electives are available in fields such as estates and trusts, taxation, administrative law, and commercial law and often include skills courses in trial and appellate advocacy and clinical training in client counseling. Some newer electives are in the fields of environmental, employment discrimination, eminent domain, and intellectual property law. Classes in alternative dispute resolution also are becoming increasingly popular.

Since first introduced at the Harvard Law School in the 1870s, the “case method” has become the principal method of instruction in law schools. Casebooks today contain not only reported appellate court cases but also related materials. Professors frequently employ the “Socratic method,” with students reciting cases and responding to in-depth questions concerning analysis of a case and its implications in the law. Use of the Socratic method has declined somewhat in recent years, particularly in classes beyond basic required courses. In elective courses, many professors now follow traditional college lecturing and discussion. Most basic law courses culminate in a written examination requiring a detailed analysis of hypothetical factual situations with discussion of applicable rules of law. Many law schools now place an increased emphasis on clinical and skills training where students learn “to perform like lawyers” and are graded on their performance rather than on written examination.

The Organized Bar

Although we do not use the term “barrister” in the United States, we do refer to licensed attorneys as having been “admitted to the bar.” State laws govern the admission requirements and require passage of a written bar examination before an applicant can be admitted to practice in a particular state. Usually, the highest court in the state has oversight of the bar admission policies and requires a thorough check of the applicant’s background. Successful applicants take an oath to support the federal and state constitution and adhere to the ethical requirements of being a lawyer.

Some states have a unified bar that has been delegated authority to regulate the profession, usually under the oversight of the state’s highest court. One who practices law in the state must be a dues-paying member of the state bar association. Dues furnish the administrative support for activities relating to disciplinary measures and continuing legal education. In some instances, however, a unified bar has used its funds to pay for lobbying to secure legislation favorable to causes advocated by bar leadership. Some members have disagreed with positions taken by unified bar associations, and in 1990 such a disagreement came into sharp focus when the U.S. Supreme

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Court ruled that a bar member cannot be forced to pay dues to support political and ideological activities with which a lawyer-member disagrees.65 In other states, bar association membership is optional. In either instance, lawyers usually form voluntary bar associations at the local level to further their social and professional contacts, to foster continuing legal education, and to provide legal assistance to the poor.

Being admitted to the bar in one state does not permit a lawyer to practice in another state. Nevertheless, a lawyer typically can be admitted to practice in another state on a limited basis when accompanied by a lawyer admitted in that state. Admission to the practice of law in a state does not carry with it admission to practice in a federal court. Instead, each federal trial and appellate court has its own requirements. These requirements are largely administrative, but in some instances an oral examination is given.

Prior to 1975, bar associations often adopted minimum fee schedules designed to limit “cost-cutting practitioners” that established lawyers deemed to be unethical. In 1975, the Supreme Court turned a deaf ear to such contentions and held that enforcement of a mandatory minimum fee schedule violated antitrust laws.66

Specialization and Certification

The law has grown exceedingly complex, and the practice of law has become quite competitive. These factors have led to extensive advertising — especially when coupled with the Supreme Court’s 1977 ruling that the First Amendment protects a lawyer’s right to engage in commercial speech.67 Furthermore, advertising fosters specialization, and this in turn has led to the certification of lawyers who practice in particular areas. Certification generally is conferred by a state bar organization under the oversight of the state’s highest court. It is achieved by having practiced in a given area for a stated period of time and by having successfully completed a written examination of the law and procedures applicable to that area of the law. Board-certified attorneys are deemed to have special knowledge and skill in their area of certification. Certification enables a lawyer to publicly announce his or her competency in a given field. Usually, one who is certified must fulfill certain practice requirements and complete a number of continuing legal education courses in order to be periodically recertified.

Paralegals

Lawyers have long placed great responsibilities on their legal secretaries, who often acquire considerable experience in assisting with the drafting of legal documents and with the preparation of cases for settlement or trial. With the increased specialization of the legal profession, in recent years the paralegal (sometimes referred to as a legal assistant) has come on the legal scene to work in conjunction with the attorney and the legal secretary. A paralegal is one who has been educated in basic legal studies and trained to assist attorneys in drafting legal documents and in preparing cases. The duties and responsibilities of a paralegal depend on the practice of the lawyer being assisted. For example, lawyers who specialize in handling personal injury cases often rely on paralegals to prepare suggested drafts of interrogatories to opposing parties, to assemble medical reports, and to keep track of a client’s expenses that may be

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eligible for reimbursement. In real estate practice, a paralegal may obtain appraisals and title insurance commitments, handle property insurance transfers, draft routine legal documents for review by the lawyer, and prepare closing statements for transactions. Paralegal institutes now train individuals to become professionals and, in some instances, use this text for instruction in basic principles of law. In addition to the examples given, in probate, employment discrimination, criminal law, and other specialized areas, the paralegal has become an established professional in the delivery of legal services.

Finding a Lawyer

Although more than two-thirds of lawyers engage in private practice, a prospective client often finds it difficult to select a lawyer to serve the client’s needs. Web sites and local bar directories carry names and usually indicate a lawyer’s area of practice. Yet, as is the case in selecting a physician, one often must depend on a referral. Historically, advertising by lawyers was prohibited, and many members of the legal profession are disdainful of advertising, believing it to be unprofessional. Nonetheless, truthful advertising is permitted and can enable a prospective client to become informed about the qualifications and areas of practice of lawyers without the necessity of making repetitive calls to law offices. In some situations, membership organizations, prepaid legal insurance, and group legal plans assist in making referrals.