Gov. Rick Scott’s legal team has responded to a court challenge to his freeze on rulemaking by state agencies, arguing the Florida Constitution gives him the authority for the freeze because it grants the governor the “supreme executive power” over state agencies.
Scott ordered the freeze on new state regulations when he first took office and created a new office to review new and existing rules. According to yesterday’s filing, the move was motivated by the governor’s “fervent belief that unnecessary and obsolete regulation is hurting the state economy.” Four advocacy groups are petitioning the Florida Supreme Court, arguing that the move exceeded Scott’s constitutional authority and held up necessary services.
Scott’s court filing notes that governors in other states, as well as President Barack Obama and former Florida Gov. Lawton Chiles, all created processes to review rules created by agencies they oversee.
As these examples show, in the complex administrative state that now characterizes American government — in which dozens of agencies promulgate thou- sands of regulations — it has become common practice for chief executives to review and assert control over agency regulatory activity.
The governor’s newly created Office of Fiscal Accountability and Regulatory Reform has begun giving the go-ahead to some rules held up by the freeze, but others remain stalled.
A blind woman seeking to reapply for food stamps filed a petition with the court in late March, arguing that the freeze frustrated her efforts to obtain benefits under the program and that Scott’s executive orders should be struck down.
In an interview, Rosalie Whiley said that she has to rely on neighbors and relatives to help her navigate a complicated online application process, which requires her to share private information. The Department of Children and Families was working on a simplified application process that would make it easier for people with disabilities to reapply without providing as many personal details, but Scott’s rule freeze put the changes on hold.
Audubon of Florida has joined the case, arguing the freeze has also stalled restoration efforts in Biscayne Bay. The Academy of Florida Elder Law Attorneys has also filed a brief, contending that the procedures under Scott’s executive order “continue to result in delays of services to a vulnerable population,” as did Disability Rights Florida, which argues that “freezing the legislatively-delegated authority of these agencies to actively and quickly respond to demonstrated needs for rule changes, inevitably results in delays or denials of services to persons relying on them for quality of life, if not outright survival.”
The challengers have argued that the authority to make rules is given to state agencies by the Legislature and that the governor doesn’t have the authority to interfere. Rulemaking is the process in which executive agencies carry out the will of the Legislature by implementing the finer details of the laws it passes. By asserting authority over the process, they argue, Scott is violating the principle of separation of powers.
Scott’s lawyers respond:
The question here is not whether agencies are encroaching upon the legislative function, but rather whether the Governor, as Chief Executive and Chief Administrative Officer, is entitled to exercise appropriate discretionary authority within the rulemaking authority as delegated by the Legislature. Ignoring established precedent, Petitioner would have this Court declare Florida a stranger to her sister states, to the federal government, and, indeed, to her own history by rejecting the practices that have come to characterize, and render workable, the modern administrative state.
They go on to argue that the case ought to be treated as an administrative law dispute and doesn’t be long before the state Supreme Court.
At most, Petitioner’s suit is a run-of-the-mill challenge under the Administrative Procedure Act (albeit a meritless one). Because Petitioner has leap-frogged the standard, orderly process for pursuing such claims, this APA challenge comes to the Court on an incomplete and misleading set of factual allegations. It is for precisely this reason that this Court should not be the forum of first resort for such challenges.
The challengers are expected to file a response. The documents from the case can be found here.