B. Administrative Agencies in South Carolina

• Library: The Paralegal Survival Guide (SCBar) (2020 Ed.)

B. Administrative Agencies in South Carolina¹

Administrative agencies, in general, are found in the executive branch because of their involvement in executing the laws. We can take two more steps - again using what are admittedly generalizations - toward identifying common characteristics of government agencies.

The first step is to recognize that most agencies do one or more of three things: (1) they regulate private activity, sometimes through a scheme of licensing; (2) they grant government benefits; and (3) they manage public property, public services, and people for whom the government has special responsibilities.

(1) Regulation entails (a) requiring individuals and organizations to do things or (b) prohibiting them from doing things. Thus, for example, the South Carolina Department of Health and Environmental Control (DHEC) regulates businesses and individuals by making them follow environmental protection laws. Many agencies, including DHEC, exert regulatory control through the issuance of permits and other sorts of licenses. Most businesses and professions are subject to regulation by at least one agency and usually by multiple agencies.

(2) The granting of government benefits entails handing out such things as food stamps, farm subsidies, and tax benefits. For example, the South Carolina Department of Social Services (DSS) administers the food stamp program.

(3) Finally, public property includes both government-owned land and other types of property, such as military hardware. Public services include public transportation and public parks; and the people for whom the government has special responsibilities include government employees, public school students, and institutionalized people (e.g., prisoners and people committed to mental institutions). The federal and state governments collectively have responsibility for a large portion of the nation's land, the nation's economy, and the nation's people.

These three categories - regulating, granting benefits, and administering public property, services, and certain populations with a special relationship to the government - are imprecise. Many agencies do things that do not fall into any of these categories, and sometimes categories can overlap.

In sum, agencies differ greatly, however, some generalizations can be made. Most agencies are associated with the executive branch, reflecting their involvement in executing the law. Many agencies execute laws that regulate the private sector; authorize government benefits; or provide for management of public property, public services, or people with special relationships to government. To carry out these activities effectively, agencies may be given, among other powers, the powers to make rules, engage in executive activities such as investigation, and adjudicate cases. The exercise of these powers often affects legal rights and therefore impacts lawyers. We turn to a framework for analyzing an agency's exercise of its powers.

1. Powers and Duties

Administrative agencies have many different duties, powers and names (e.g., boards, commissions, departments). Furthermore, every administrative agency is constantly adapting to reflect changes in the law and in the issues that the agency was created to address. This variety and constant change make it hard to identify a static set of uniform principles of administrative law. Indeed, it can be dangerous to conceive administrative law as a static set of uniform principles. That conception can obscure essential differences among agencies. You must know what is distinctive about an agency to effectively practice before (or on behalf of) the agency and challenge (or defend) its actions in court.

Every agency action must be supported by a law authorizing the agency to take that action.² Usually the laws that grant powers to agencies take the form of statutes. Indeed, agencies are often described as "creatures of statute."³ Of course, laws can take non-statutory forms, and some agencies are created and given powers by non-statutory laws, such as regulations, executive orders, or constitutional provisions.⁴ Nonetheless, your starting assumption should be that, for every action that an agency takes, the agency should be able to identify some statute that arguably authorizes that action.

Unfortunately, a single agency's powers may come from several different statutes. Complicating matters further, the statutes that give authority to an agency do not follow a particular pattern; they are not found in a predictable place; and no guarantee exists for identifying all of them. That being said, most of the statutes that supply agencies with authority fall into one of three categories.

The first type is the statute that creates the agency which is called the agency's "organic" statute, its "charter," or its "enabling" legislation...