Attorney General Pam Bondi filed a brief on Wednesday supporting Gov. Rick Scott’s position in a challenge brought before the state Supreme Court over his attempts to control rulemaking by state agencies. #
Scott’s lawyers responded to the petition last week, arguing that the state constitution grants the governor “supreme executive power,” which includes the power to oversee agency rulemaking. Bondi’s filing backs up that position, noting the constitutional powers of Florida’s governor have expanded in recent decades, buffeted by a 1992 contitutional amendment that officially made the governor the state’s “chief administrative officer.” #
The petition, brought by a blind woman seeking to reapply for food stamps and supported by Audubon of Florida and other advocacy organizations, argued that rulemaking is a power controlled by the Legislature, which lawmakers delegate directly to agencies tasked with implementing state laws. The case contends that executive orders issued by Scott, which froze rulemaking and created the Office of Fiscal Accountability and Regulatory Reform to approve new agency rules, are unconstitutional and have interrupted government services. #
In Wednesday’s filing, Bondi argues “it is a faulty view of executive power that dozens of gubernatorial agency heads may operate independently of the Governor, and enact rules absent executive oversight.” #
Florida’s legal framework establishes administrative accountability in a single person – the Governor – whom Florida’s electors hold directly responsible for the actions of his agencies. Consistent with Florida law, history, and tradition, Governor Scott’s establishment of an accountability-review process for agency rulemaking – just as Governor Chiles did in 1995 – is both lawful and an appropriate way to ensure that his agencies meet state-established goals. #
According to Bondi’s filing, Chiles “directed agencies to review the purpose, intent, and necessity of each rule and to submit obsolete rules to his Office of Planning and Budgeting for analysis and immediate repeal.” #
Here’s how a study of regulatory reform efforts in different states described the Chiles effort: #
In the 1990s, as part of a populist political upsurge, regulatory reform moved to the front of Florida’s legislative agenda. An initial legislative crackdown on agencies’ use of guidance documents in lieu of regulations triggered an up-tick in the number of new rules passed, which in turn sparked a counter-revolution seeking to decrease regulatory burdens. In 1995, Governor Lawton Chiles issued Executive Order 95-74, which motivated agencies to repeal some ten thousand rules; however, most of those repeals were of outdated or un-enforced rules, and the deregulatory push had little substantive effect. #
Governor Chiles also issued Executive Order 95-256 the same year, creating the Administrative Procedure Act Review Commission. Implementing the Commission’s recommendations and other ideas, the legislature amended the state’s Administrative Procedure Act in 1996, adding new requirements like the mandate for agencies to select the “least-cost” alternative. #
Bondi’s filing contends that “Strong gubernatorial action in holding agency rulemaking accountable in the wake of constitutional and statutory reform in the 1990s demonstrates that rulemaking oversight from the state’s chief administrative officer is appropriate – indeed expected – under Florida law.” #
Bondi also argues that the court should respect the separation of powers by not getting involved in the internal management decisions of the executive branch when it is not in clear violation of any laws, and that Scott’s executive orders do not violate the Administrative Procedures Act, the main section of Florida law that governs rulemaking. #
Bondi’s filing, along with other documents related to the case, can be found here. #
