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Supreme Court Decides Governor’s Rulemaking Authority

Supreme Court Decides Governor’s Rulemaking Authority

Governor Rick Scott issued Executive Order 11-01 as his first official act upon taking office earlier this year.  The executive order directed all state agencies under the Governor’s control to suspend rulemaking and not to proceed with administrative rules until approved by a new Office of Fiscal Accountability and Regulatory Reform.  The executive order also requested that non-gubernatorial agencies also suspend rulemaking.  These directives and requests were intended to ensure Florida administrative rulemaking would not be an impediment to job creation and advancing Florida’s economy through the current economic slowdown.  The Governor eventually signed Executive Order 11-72 superseding Executive Order 11-01, although the new executive order had a similar intent.

The Governor’s executive orders presented an interesting separation of powers issue in Florida administrative rulemaking.  A challenge to the Governor’s actions made its way to the Florida Supreme Court in the form of Whiley v. Scott.   In this case, the petitioner sought to establish that Governor Scott exceeded his authority by directing agencies under his supervision to suspend rulemaking.  In a 5-2 decision, the Supreme Court found that the Governor indeed exceed his constitutional authority.

The Supreme Court accepted the case because it raised serious constitutional questions relating to the authority of the Governor and the legislature relating to rulemaking.  The Supreme Court found that the executive orders related to the governmental function of rulemaking, and in Florida rulemaking is a derivative of lawmaking in that rules must implement a specific law and must be based on a legislative grant of rulemaking authority.

The Supreme Court expressed concern with provisions in the executive orders inserting the Office of Fiscal Accountability and Regulatory Reform in the rulemaking process by requiring that it approve rules before they could be proposed.  The Governor, in essence, changed the Florida rulemaking process.  The Supreme Court reasoned that the Governor’s actions then infringed on the legislature’s delegation of rulemaking power.

Two justices dissented and presented alternate analyses.  These justices pointed to provisions of the Florida Constitutional declaring that the Governor is the head of the executive branch.  Given that the executive orders were binding only on executive branch agencies, those executive orders had the effect of simply advising agencies under the Governor’s control that the Governor would have an internal process for approving rules before the rules could be formally proposed.  The dissenting justices argued that the executive orders were within the Governor’s authority to direct agencies under his control, and the majority’s decision improperly limits the Governor’s ability to oversee the affairs of his own agencies.

In the end, Whiley v. Scott presents an interesting analysis of administrative rulemaking requirements in Florida.  Under the decision, rulemaking is traceable to a delegation of power from the legislature to the executive branch, and once delegated the executive branch cannot infringe on that power absent an amendment to the Administrative Procedure Act or other expression of intent from the legislature.