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Governor Regains Control of Executive Branch Rulemaking

Governor Regains Control of Executive Branch Rulemaking

Governor Rick Scott has signed HB 7055 into law restoring the Governor’s ability to directing rulemaking at agencies under his control.  The legislature passed the bill this year in response to the Florida Supreme Court’s decision in Whiley v. Scott.  That case arose from the Governor’s first official act when he took office, which was to issue Executive Order 11-01 relating to rulemaking by administrative agencies.  In the order, the Governor directed administrative agencies under his control to suspend existing rulemaking activities and not to proceed with administrative rules until approved by a newly created Office of Fiscal Accountability and Regulatory Reform.  The Governor’s objective in issuing the Executive Order was to ensure that administrative rulemaking would not serve as an impediment to job creation, which was a cornerstone of the Governor’s campaign.

The Executive Order presented an interesting question of administrative law and the impact of the separation of powers doctrine.  Executive branch agencies may adopt rules only as authorized by the Florida legislature.  In doing so, agencies must follow procedures and timeframes established by the legislature.  The Governor’s Executive Order therefore raised a significant question as to the ability of the state’s chief executive to direct rulemaking at agencies under his direct control once those agencies have embarked upon a rulemaking path established by the legislature.

The Florida Surpreme Court ruled in Whiley v. Scott that the Governor overstepped his constitutional authority when he interfered with agency rulemaking.  The Supreme Court found that the administrative rulemaking process is an extension of the legislative process from which it arises, leaving the Governor unable to suspend or alter the process.  Two justices dissented in the 5-2 decision, arguing that the agencies affected by the Governor’s Executive Order were within his direct control and the Governor should be able to affect their rulemaking.  The dissenting justices argued the Governor was simply exercising his ability to oversee the affairs of his own agencies.

When signing HB 7055 into law, the Governor wrote that “the Legislature has stated in no uncertain terms that Whiley was wrongly decided.”  The Governor called the public policy set forth in the new law consistent with the “traditional view of executive power.”  Senator Don Gaetz, who sponsored the Senate version of the bill concurred, stating that “individuals appointed by the Governor to head a state agency should by supervised by those who are elected to serve the public.”