In a 5-2 ruling, the Florida Supreme Court struck down an executive order issued by Gov. Rick Scott halting all new rules and mandating executive approval before their implementation.
The order was Scotts first, issued in January in the early days of his term. He wanted to decrease the amount of new and existing rules and regulations promulgated by state agencies, saying they impede job creation. But the Supreme Court ruled his executive order encroached upon the legislative branch and the authority of the Legislature to enact policy and direct rule-making procedures.
Scott disagreed with the decision.
It doesn't make any sense to me. It doesn't follow the (state) Constitution and it's a disappointment. Think about it: the secretaries of these agencies report to me, and they work for me at will and then I'm not supposed to supervise them, Scott said when he heard about the decision.
Five of the Supreme Court justices, however, found that Scott violated the separation of powers and unduly encroached on the Legislatures authority. The executive order created an Office of Fiscal Accountability and Regulatory Reform (OFARR), directed by the governors office, to which all agencies under the governors control were to submit new rules for review.
In the first three months, the office reviewed more than 11,000 rules and flagged nearly 1,100 for repeal. Because the new process inserted executive approval requirements, the court stated, it encroached on the Legislatures ability to allow agency heads to formulate rules governing their institutions.
The foregoing leads the court to conclude that the governors executive orders at issue here, to the extent each suspends and terminates rule-making by precluding notice publication and other compliance with Chapter 120, absent prior approval from OFARR -- contrary to the Administrative Procedure Act -- infringe upon the very process of rule-making and encroach upon the Legislatures delegation of its rule-making power as set forth in the Florida Statutes, the majority opinion states.
The two dissenting justices, Chief Justice Charles Canady and Justice Richard Polston, noted that the ostensible reason for the lawsuit -- a delay in implementing a new rule -- was not affected by the executive order.
Rosalie Whiley, a Miami woman on Food Stamps, brought the suit over a supposed delay in processing a rule that would make it easier for her to obtain her stamps. OFARR reviewed the rule in question, and allowed it to go through the process, where it is yet to be implemented.
The petitioner strikingly has failed to show any specific action required by law that was prevented by the implementation of the executive orders at issue here. In the absence of such a showing, the majority nonetheless rules in favor of the petitioner by imposing unprecedented and unwarranted restrictions on the governors constitutional authority to supervise subordinate executive branch officers, Justice Canady states in his minority opinion.
Its unclear how much the ruling will affect Scotts ability to prevent unwanted rules from being implemented.
His legal team noted that the Courts ruling applies only to proposed new rules, and that OFARR will likely continue to play a role in reviewing rules, only without the authority to stop them from being adopted by agencies.
Scotts office is still formulating how best to accommodate the mandates of the ruling but still apply his intention of preventing the adoption of rules that hamper job growth, but another executive order stating the executive branchs role in rulemaking could be forthcoming.
Reach Gray Rohrer at grohrer@sunshinestatenews.com or at (850) 727-0859.
