The Florida Supreme Court heard arguments Wednesday on one of Rick Scott’s first and most substantial acts as governor, which drew a legal challenge earlier this year.
Rosalie Whiley, a blind woman seeking to reapply for food stamps, challenged Scott’s authority to suspend rulemaking by executive agencies, an effort intended to reign in out-of-control regulations, but that also ensured agencies’ efforts to do things like creating a streamlined application for food stamps. (That specific rulemaking effort, Scott’s lawyers were quick to point out, has since been approved, and is again moving through the process.)
Scott froze rulemaking the day he took office, in his first executive order (.pdf), which also created the Office of Fiscal Accountability and Regulatory Reform (aka OFARR). Under that order, and a later order that has since replaced it, agencies cannot begin crafting new regulations until OFARR gives the OK.
The goal of the orders was to reign in overly burdensome or unnecessary regulations, a goal Scott touted in his inaugural address. The question before the Supreme Court largely boils down to how much authority Scott has to act on the issue.
Lawyers for Whiley and her allies have contended that because rulemaking authority is delegated from the Legislature to state agencies, Scott cannot freeze rulemaking, nor can he create a new bureaucracy, such as OFARR, with the power to hold up new rules.
Scott’s lawyer, Charles Trippe, argued that other governors and presidents of the United States have conducted reviews of their regulations and rulemaking procedures. Why, he argued, are Scott’s efforts any different? Both sides acknowledged that Scott has the authority to request information from the agencies he controls and to review their rulemaking decisions.
“No one wants a bureaucratic maze of outdated, ineffective, or economically burdensome rules, and so the intent — to that extent — I don’t think anyone is quarreling with that,” said Justice Barabara Pariente as she grilled Trippe. ”The only issue, I think, as we’ve narrowed it, is: Can the governor stop rulemaking authority, or by doing that is he acting outside his executive branch role and encroaching into the legislative role?”
Scott’s latest executive order states that agencies cannot issue notices of proposed rulemaking “without OFARR’s approval.” Justices probed whether that meant Scott is claiming the authority to put the breaks on rulemaking, or merely formalizing the process of gathering information about regulations that the agencies under his supervision are working on.
While Trippe pointed out that OFARR quickly approved the rule that affected Whiley’s food stamp application, the underlying legal question remains: How much authority can Scott claim over the development of new regulations?
Cindy Huddleston of Florida Legal Services, which helped bring Whiley’s case, said this is more than an abstract, academic question about the scope of executive power. For organizations like hers, which advocate on behalf of the needy and the disabled, the rulemaking process outlined in the Administrative Procedure Act is vital to ensuring that “people are afforded their rights when you’re dealing with the government.”
The process created by Scott’s executive order adds a new step — which the public can neither watch nor directly participate in — to the existing process of administrative hearings and public workshops where regulations are crafted, altered, or eliminated. One of the questions raised in this case is whether that extra step violates the Administrative Procedure Act, or can coexist with it.
Huddleston said that under OFARR’s review, ”you have no opportunity to try to influence the process or let them know what your particular concerns are with a rule.”
The rulemaking process “used to be a conversation,” said Talbot “Sandy” D’Alemberte, who helped argue the case before the court. “The conversation ends when it goes to OFARR.”
It’s not clear when the court will issue its decision on whether the extra step in the rulemaking process is legally and constitutionally valid. The justices suggested — and Trippe seemed to acknowledge — that if any part of the measure is struck down, it could strike Scott’s orders in their entirety, dealing a major blow to an effort that, though it has largely taken place behind the scenes and below the radar, represents a key aspect of Scott’s approach to running the state.
Sen. Bill Nelson, D-Fla., is now the only statewide elected Democratic official in Florida — meaning he will likely face a stiffer challenge than his opponent in 2006, former Florida Secretary of State Katherine Harris. But a Public Policy Polling survey (.pdf) shows Nelson with solid favorability ratings for an incumbent, though many statewide still don’t know him since he was first elected to the Senate in 1998.