This is our first article on Your Pet and the Administrative State. When you're finished here, don't forget to continue on to Some Are More Equal Than Others and an introduction to occupational licensing.
In school you probably learned a bit about the general structure of state government and covered topics such as separation of powers. The general notion is that a bill is introduced in a legislative body, goes through a committee process, and if it’s lucky it advances to the full legislature for a vote. If the bill passes through both houses of the legislature, it goes on to be signed by the governor, then gets incorporated into the laws of the land. From there it’s up to the executive branch to enforce the law while the judicial branch handles the interpretation of it.
That system barely exists in practice, generally doesn’t work for you, and doesn’t exist at all for your pet. Indeed, in many respects, most of the failures of government, business, and society visited upon your cuddly critters broadly parallel the same deficits and dysfunctions as in human affairs. It’s a window into our society with the few remaining safeties disengaged, with family members who literally have no voice nor any way to organize or defend their rights. Within the context of veterinary victims, however, most of the government’s failures can be directly attributed to one aspect of our government: the modern administrative state.
In broad terms the administrative state refers to a “fourth branch of government” whereby portions of the executive branch end up unilaterally creating, enforcing, and adjudicating matters with little to no oversight from anybody else. This situation arose naturally from an environment in which many political issues of the day were highly complex, required specialized knowledge or understanding, and changed quite rapidly. Politicians had neither the interest nor the inclination to keep up with such matters, so they effectively decided to outsource those portions of their jobs to somebody else. The Arizona State Veterinary Medical Examining Board, responsible for managing nearly all veterinary matters on behalf of the state government, is just one part of this sprawling system.
What typically happens is that a perfectly normal bill is passed through the normal political process. Along with setting up some very broad laws governing a particular matter or activity, they also set up a board or agency filled with government-appointed individuals to handle the boring day-to-day. This agency is empowered with rulemaking authority that allows its members to take the very broad laws mentioned before and turn them into detailed rules having the full force of law. They also go on to investigate violations of those rules and enforce them within their particular domain, relying on a separate system of administrative courts and administrative law judges in matters of adjudication. In the case of the state veterinary board, the enabling legislation is the Veterinary Practice Act.
You’re probably wondering who acts as a brake on the administrative agencies. In general, the answer is nobody. While many of the people running an agency are nominated by the governor and proceed through a confirmation process in the Senate, the day-to-day operations largely exist outside the realm of formal public accountability. Unlike, for example, members of a school board, members of state agencies such as the veterinary board are never elected by the public; neither are they able to be later removed from office in a retention vote as are judges. The Governor’s Regulatory Review Council, itself an administrative agency, reviews the rulemaking activity of other administrative agencies with an eye toward minimizing burdens on the private sector.
There’s also a sunset review process in place for Arizona state agencies, in theory reviewing whether the agency is fit for purpose and should continue existing in its current form. That usually involves the agency getting a new lease on life through self-reported data, legislative rubber-stamping, and legitimacy laundering through something called a Joint Legislative Committee of Reference. Despite the rather intimidating name, that particular Committee simply consists of five senators appointed by the President of the Arizona Senate and five representatives appointed by the Speaker of the Arizona House of Representatives. During the last sunset review of the Arizona state veterinary board in 2017, public testimony appears to have been taken only from Victoria Whitmore (the Board’s executive director), Jim Loughead (the Board’s chair), and Michael Sorum (then-President of the Arizona Veterinary Medical Association) while deciding whether to renew the agency’s mandate, according to the minutes from the review.
Independent audits are few and far between, with the last independent audit of the Arizona veterinary board being conducted by the Arizona Auditor General over a quarter of a century ago in 1997. That same audit found significant problems with the Board’s accountability, representation, and handling of complaints, going so far as to imply that the veterinary board may have been rigging the process by ramping up enforcement when up for review. After that time, all future audits were directed to the Joint Legislative Committee of Reference rather than the auditor’s office.
Some administrative court decisions can be appealed to an actual court, but it generally depends on the case in question. For example, a handful of horse massagers shut down by the Arizona veterinary board were able to appeal to the Arizona Superior Court and obtained a settlement after a multi-year court battle. On the other hand, complainant David Kaufman appealed a veterinary board decision exonerating veterinarian William Langhofer to the Arizona Court of Appeals and was told that while veterinarians and board members can appeal decisions, complainants cannot as they are not considered a party to the matter according to the law.
Given the power that administrative agencies generally have, you’re probably not surprised to learn that they’re a somewhat tempting takeover target for anyone with an agenda. Of those, the people with the biggest agenda are often those whose financial fortunes and professional prospects wax and wane with the actions of the agency overseeing their line of business. If you’re going to be regulated, it pays to become the regulator.
This leads to one of the classic failures of the administrative state, that of regulatory capture. Similar to the situation when special interests buy enough politicians to push their agenda, in this case special interests do so by proxy, ensuring that favorable nominees and employees find their way into the administrative apparatus. Once they’re in, they have influence over the rulemaking process and the enforcement process, and even some influence over how cases brought by the agency are prosecuted within the administrative court system.
The nightmare scenario, of course, is when an agency is effectively colonized by such persons. At that point the regulatory system is effectively captured, a bureaucratic form of checkmate in which the public interest is rendered completely irrelevant to special interests with the time and wherewithal to influence the nomination process. It’s a way of buying the government on the cheap since you can buy just the relevant agencies à la carte.
Once the invaders are inside the city, everything is pretty much fair game. If your agency is suffering from regulatory capture, there are some common symptoms to look for. You’ll generally see deference shown to the players and special interests over any broad notion of the public welfare. You’ll also see forbearance shown toward those who may have violated rules or statutes, and interpretation and promulgation of rules more favorable to stakeholders than the public. You will often see connections at top levels between representatives of special interests and appointees, sometimes becoming a “revolving door” where individuals cycle between the agency and the domain it regulates.
Are there safeguards to prevent this? Just the politicians, but if they wanted to be involved in governing on these matters, they wouldn’t create agencies to do it for them. Nominations to these agencies do come from the governor and go through the Senate, but to the extent oversight occurs, it’s typically the unintended result of political turf wars rather than genuine oversight. A high-profile nomination acting as a proxy battle for a particular political cause célèbre might garner an undue amount of attention, but for most things, nobody’s watching, certainly not in any system of one-party government, and rarely in a divided one.
The agencies themselves also have the power to appoint or hire their own underlings to influence their own process, much as the Arizona veterinary board does with its Investigative Committees, without similar oversight from any constitutionally chartered branch of government. And in the case of the veterinary board, the topics at hand simply aren't important enough for elected officials to care. (If you’d like to see how easy most of these hearings are, you’re in luck, as we’ve collected most of the recent ones on our website.)
If you've read this far, continue on to the next article, Some Are More Equal Than Others and an introduction to occupational licensing.