Agency Expertise
The first administrative agencies were the local boards of health and citizens commissions in the colonies. They dealt with quarantine and nuisance and any other threats to the public health and welfare. Although the members were volunteers, rather than governmental employees, they tried to get citizen members who had expertise in the matters at hand, which usually included a physician to advise on health issues. These boards were preserved in the early post-Constitutional period, becoming the first agencies of the new state governments. At this period, the federal government was very small and its first agency functions were also health related—the formation of the public health hospital system to treat sailors. Although these hospitals treated the full range of naval injuries, they were termed public health hospitals because sailors were a major source of contagion brought in from foreign voyages.
This early history shaped the legal conception of agencies as bodies with expertise in the area that they regulated, exercising governmental power to remedy threats to the public health. They might be made up of private citizens or of government employees, or, commonly, a citizen board including experts such as physicians and engineers overseeing governmental employees. They were not a police force, in that their legal authority extended only to controlling threats to the public health and safety, not punishing the persons who caused the threats. The distinction between punishment and prevention is critical: whenever there is threat of imprisonment, the government must provide full criminal law due process provisions. Since such protections include pervasive limits on searches, the necessity of court hearings before many actions can be taken, and the right of the defendant to have counsel and to contest most stages of the proceeding, they make it impossible to act quickly or flexibly. In a classic case, the owners of a freezer plant attacked the right of a public health agency to seize and destroy thousands of pounds of chickens that had thawed when the refrigeration failed. The court ruled that the agency was justified in seizing and destroying the chicken without having a court hearing first because of the potential threat to the public. [ North Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) ]