The legal team that challenged two executive orders issued by Gov. Rick Scott has responded to his filings with the state Supreme Court, arguing the governor’s power is not as broad as he claims.

Gov. Scott and Attorney General Pam Bondi have argued that the governor, as the state’s chief executive, has “supreme executive power” under the state constitution, which includes the power to freeze or otherwise oversee rulemaking by agencies in the executive branch.

The attorneys for Rosalie Whiley, who brought the original challenge to Scott’s executive orders that suspended agency rules until they can be approved by a new office he set up to review them, argued in new filings this week that those powers do not give him direct authority over rulemaking — a power the Legislature delegates to state agencies, not the governor himself, under the state’s Administrative Procedure Act.

“Expansive-sounding phrases do not give the Governor any powers beyond those spelled out in the Constitution or the statutes,” they write, and freezing or otherwise interfering with agency rulemaking, a power specifically delegated to state agencies by the Legislature, goes beyond those specific powers.

In short, they write: “While Article V, section 1(a) of the Florida Constitution vests supreme executive power in the governor, that authority is subject to Florida law.”

They don’t dispute that Scott can request information from agency heads about their rulemaking activities, or advise them on how to proceed. What he cannot do, they argue, is “prohibit agency heads from conducting rulemaking” without “express approval” from the Office of Fiscal Accountability and Regulatory Reform, which Scott created in one of his first acts as governor.

The issue, as one of Whiley’s lawyers, Kathy Grunewald, explained in an earlier interview, is not that Scott has taken an interest in the rulemaking process, but that he has created a new layer of bureaucracy that rules have to go through before they can be approved.

Whiley, a blind woman seeking to reapply for food stamps, has argued that Scott’s rule freeze improperly stalled an effort by the Department of Children and Families to make it easier for people with disabilities to seek government benefits. Bondi responded in a filing supporting Scott that Whiley’s case does not belong before the high court and should instead be settled in an administrative challenge.

Whiley’s lawyers argue that the question of executive power goes beyond that specific matter, and that the stalling of one rule that particularly affects her simply illustrates the broader “havoc that the Executive Orders have wreaked on orderly rulemaking in Florida”:

Ms. Whiley filed her Petition as a citizen and taxpayer of Florida; she has a public right “to have the governor perform his duties and exercise his powers in a constitutional manner.”

If Scott wanted more authority over rulemaking, the filing continues, he should have sought changes from the Legislature. He didn’t publicly call for state lawmakers to change the Administrative Procedure Act to give him the power he claims through his executive orders, though he did seek increased authority to repeal the rules he was reviewing. Lawmakers ultimately did not give it to him.

Documents related to the case can be found here.


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