Gov. Rick Scott suffered a legal setback Tuesday when the Florida Supreme Court ruled that an effort to hold up new state regulations was unconstitutional, but the practical effects of the decision are still unclear.
As part of his efforts to “hold government accountable” and crackdown on “job-killing” regulations, Scott issued a temporary freeze on new regulations in one of his first formal acts as governor. Executive order 11-01 also created the Office of Fiscal Accountability and Regulatory Reform (aka OFARR), which was charged with reviewing new and existing rules to ensure they did not exceed legislative authority or stymie job creation.
Rosalie Whiley, a blind woman seeking to reapply for food stamps, filed a petition with the court in March, arguing that the order had ensnared a measure by the Department of Children and Families to create a streamlined application for the program.
The environmental group Audubon of Florida and advocates for the elderly and the disabled joined the case, arguing that Scott had exceeded his constitutional authority and violated the separation of powers by inserting a new layer of bureaucracy into the process of rulemaking, in which the Legislature delegates the power to fine-tune its laws to executive agencies.
Scott subsequently issued a new order, which replaced the original order and contained this passage, which was cited in Tuesday’s ruling:
I hereby direct all agencies under the direction of the Governor, prior to developing new rules or amending or repealing existing rules, to submit all proposed notices, along with the complete text of any proposed rule or amendment, to OFARR. These agencies shall also submit any other documentation required by OFARR, and no such agency may submit for publication any required notice without OFARR’s approval
The Supreme Court’s majority opinion, joined by five justices, supports the petitioners’ argument that Scott did not have the power to hold up the rulemaking process by requiring new rules to be approved by the office.
In their arguments before the court, Scott’s lawyers held that he was acting under the “supreme executive power” granted to the governor by the state constitution, and argued that because the heads of executive agencies serve at the pleasure of the governor — meaning he can fire them if he disagrees with their decisions — he could assert authority over how they conduct rulemaking. Tuesday’s opinion, however, holds that “the power to remove is not analogous to the power to control.”
Scott’s advisers said Tuesday’s ruling failed to show proper deference to the executive branch, and that if there was any way the governor’s efforts could conceivably be ruled constitutional, the court should have allowed them to stand.
“It doesn’t make any sense to me,” Scott said, adding that he felt his executive order was in line with his power to supervise the heads of executive agencies.
A dissenting opinion by Justice Ricky Polston offered a similar assessment, holding that “if ‘supreme executive power’ means anything, it must mean that the Governor can supervise and control the policy-making choices — within the range of choices permitted by law — of the subordinate executive branch officers who serve at his pleasure.”
The ruling — and the petitions challenging Scott’s order — did not find fault with the process of reviewing rules or requesting information from agency heads, and focused more narrowly on the suspension of rulemaking and OFARR’s authority to hold up proposed rules before they enter the public rulemaking process.
On Tuesday, the governor’s office was still trying to figure out what the ruling’s effect will be. His advisers hinted at the possibility of a clarifying executive order but said it was too early to tell whether one would be necessary.
The ruling itself suggested that action by the Legislature could clarify what the governor’s authority should be:
We grant Whiley’s petition but withhold issuance of the writ of quo warranto. We trust that any provision in Executive Order 11-72 suspending agency compliance with the [Administrative Procedure Act], i.e., rulemaking, will not be enforced against an agency at this time, and until such time as the Florida Legislature may amend the APA or otherwise delegate such rulemaking authority to the Executive Office of the Governor
When it comes to streamlining state regulations, Scott and the Legislature appear to be mostly on the same page, and Scott’s legal team has noted that lawmakers did grant him some authority to cleanse the state’s rulebook during the past legislative session. (At one point, there was an effort to give him substantially more power.)
Scott spokesman Brian Burgess told reporters at a background briefing that Scott’s efforts to streamline regulation will continue, but that he has one less tool with which to do so, at least for the time being. OFARR will remain in place and will continue to scrutinize new and existing rules.
The court’s ruling can be found here (.pdf).