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Supreme Court Says Rick Scott Overstepped His Authority By Usurping Rule-Making Powers

| August 16, 2011

rick scott whiley supreme court decision

Chastened.

In a stinging rebuke of Gov. Rick Scott’s interpretation of his powers, the Florida Supreme Court today, in a 5-2 ruling, declared the governor’s attempt to blunt and circumvent state agency rule-making invalid, saying that “the Governor has overstepped his constitutional authority and violated the separation of powers.”

Scott was defeated by Rosalie Whiley, a blind, poor, black woman on food stamps who challenged an executive order Scott issued immediately after taking office, suspending state agencies’ regulatory powers. Scott wanted authority to review all rules and essentially exert veto power over those he deemed anti-business, against his jobs agenda or unappealing to his deregulatory instincts. State agencies, however, are delegated by the Legislature to make rules. Scott’s executive order supplanted legislative authority, the court said.

One of the rules Scott suspended had a direct effect on Whiley. The rule would have made it easier to re-apply for food stamps and not depend on others to do the application for her, or to reveal personal information to third parties helping her, as she had to until then, because of her blindness. The new rule would have allowed her to fill out the application online, as many other states provide for their recipients. The rule was also a requirement to keep qualifying for federal dollars, because Florida’s system was out of step with federal law.

On Jan. 4, Scott issued Executive Order 11-01, creating the Office of Fiscal Accountability and Regulatory Reform. All state agencies were ordered to stop issuing rules. They were also order to submit drafts of their proposed rules to the governor’s accountability office for approval—or rejection. The state agencies were also required to appoint “accountability” officers of their own, and to review all their rules. In April, Scott issued another executive order that slightly softened the wording (the terms “suspending” and “suspend” were removed) and created the notion that the new office in the executive branch was merely a continuation of existing functions. The Supreme Court, in unusually strong language directed at the governor, called the second executive order “nothing more than a sleight of hand.”

Whiley filed suit on March 28, challenging the first executive order as a violation of the separation of powers. The court agreed.

Scott does not intend to close the office of accountability nor keep it from doing the work he’s assigned it. In practice, that office will be competing with rule-making agencies, but won’t have the authority to veto those agencies’ work.

“Rulemaking is a derivative of lawmaking,” the court said. Which means that, as courts have ruled previously, Accordingly, when an agency promulgates a rule having the force of law, it acts in place of the legislature–not the governor. “Moreover, the Legislature has delegated specific responsibilities to agency heads, such as the authority to determine whether to go forward with proposing, amending, repealing, or adopting rules.” Thus, rule-making is a legislative function.

Scott himself was, unsurprisingly, critical of the ruling. “It doesn’t make any sense to me,” he told the News Service of Florida shortly after the ruling. “I don’t think it follows the constitution and it’s a disappointment.

“Think about it,” Scott continued. “Secretaries of these agencies … they work for me at will, and I’m not supposed to supervise them? That doesn’t make any sense.”

Justices Barbara Pariente, R. Fred Lewis, Peggy Quince, Jorge Labarga and James Perry voted in the majority. Chief Justice Charles Canady and Justice Ricky Polston dissented.

Polston drew acidic criticism in a footnote: “It is most unfortunate that the dissenting opinion of Justice Polston fails to comprehend the fact that parts of an executive order may be valid while other aspects are invalid,” the note reads. “An invalid section of an executive order cannot survive constitutional scrutiny by riding on the coattails of the valid portions. Even if sections of the Governor’s executive order may be valid, the provisions that are contrary to constitutional requirements simply cannot escape without analysis.”

But Canady was no less caustic in his dissent, calling the majority’s decision “ill-conceived interference with the constitutional authority and responsibility of Florida‘s Governor” and repeatedly heaping scorn on the majority’s reasoning. “Neither the petitioner nor the majority identify any provision of law containing an express restriction on the Governor‘s power to supervise and control the exercise of discretion by subordinate officers with respect to rulemaking,” Canady wrote. “The majority’s inference of such a restriction flies in the face of the constitutional provisions which vest ‘supreme executive power’ in the Governor and authorize the Governor to appoint executive department heads who ‘serve at his pleasure.’”


Whiley v. Rick Scott: The Florida Supreme Court Case Declaring Scott’s Deregulation Scheme Invalid –

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11 Responses for “Supreme Court Says Rick Scott Overstepped His Authority By Usurping Rule-Making Powers”

  1. Well... says:

    Impeach – start the petition, get the ball rolling and get rid of this crook!

  2. palmcoaster says:

    Recall this governor as is a tyrant and dictator elected in our Republic Democratic Florida. Out with him!!
    We need to demand from Mica, Trasher, Nelson and all our representatives to place the right to recall in our Florida constitution.! My big Thank You to our five brave Florida Supreme Court Judges…my hat out to them as they did not give in to the witch hunting that may ensue.
    Sorry we lost Senator Tony Hill on the St. Johns- Duval -Flagler districts…probably due to the fact that this fascist governor was elected! and didn’t want to serve along with him representing Florida’s shameful stuff this dude is passing against the very idiots that elected him.
    Imagine what a waste of money Scott created with this new goverment entity created to veto or vote whatever he pleases and against Florida political laws.

  3. Jojo says:

    And, slick Rick always uses the term the voters elected me to do this as the catalyst for their actions. Pass around the petition to get it on the Florida Constitution first before this tyrant does more damage.

  4. palmcoaster says:

    Scott created the Office of Fiscal Responsibility…more bureaucracy in Florida paid by us all. Where was his Fiscal Responsibility, when he stole billions from Medicare while being the chief of Columbia Health? Nice way to become a billionaire…new modus operandi for these thieves to become wealthy in our USA in the last 11 years…and we have these many idiots that defend them. I wish that Obama would have the same courage this 5 Florida Supreme Court Judges exercised as well. If so our unemployment would have already been resolved and the banks wouldn’t have evicted homeowners from their homes to bulldoze them down. They would have given those people a break and delayed their payment until they could find a job, as that was supposed to be our stimulus for and not to give bonuses to their VIP’s and or buy out other banks like they did. Americans that had their 30 year fixed mortgages and were paying for well over 15 years have lost their homes due to loss of their jobs. In spite of this the only BS we hear from conservatives is that “all that lost their homes were the ones that could not afford them” what is mostly BS! Of course if we have continuously Oligarchs at the helmet in our government that are allowed to create unemployment with their deregulating greed and people loose their jobs then those innocent also loose their homes, while the dudes at the Federal Reserve, Goldman Sacks and other Banks, and the like of Paulson Hedge Funds, Apple and others taking our manufacturing overseas without proper import taxes, do their best to destroy our American Middle Class.
    Myself not being wealthy, I helped my fellow American renter couple, that due to the loss of their jobs could not pay their rent to me for a long time. I did not throw them on the streets, I spoke with them got copy of their situation and their promise to pay as soon as they found a job. Then I help them to find one and half job even giving a great reference on job applications for the couple and guess what..? they are paying their rent now and contributing to the owed arrears on a monthly basis. This is what banks should have done. Is shameful that in our country families were booted on the streets to bulldoze their homes now. What kind of human rights are those? Meanwhile we, the same people including the homeless, were forced to give the stimulus to this banks to use those funds for the unintended purpose of distribution of those our $$$, among the wealthy (banks and their VIP’s bonuses)!. If our President would have had the guts necessary to act the above wouldn’t have taken place and people would be employed again and not booted into homelessness..
    When are we going to stop this conservative liberal BS among ourselves and have some compassion for our fellow American in distress. Can you guys see that if we were fighting a foreign war this same fellow American in distress now, that many hate so much, could be the one risking his her life to save ours? We have now our brave soldiers giving their lives every day now for us…and what we do here tearing ourselves apart other than helping each other. Sure we do not justify their supreme sacrifice with our behavior! Hope Obama and Bohener get to read this one.

  5. Law Dawg says:

    God Bless Rosalie. As for Gov “It’s all about me”, the first of many legal setbacks during your one and only term in office. Enjoy

  6. Kevin says:

    If only everyone of you who are so adamantly against Scott would apply the same zeal to go after Obama and his administrations many illegal activities…wars, spending, preparation for new stimulus of unprecedented size, and the repeal of Obamacare.

  7. Riley says:

    @ Kevin
    Wars, who started the wars,Bush.
    Spending, who increased the national debt by 6 trillion dollars, Bush.
    Stimulus, if you recall Bush started the stimulus with the bail out of the banks and wall street.
    Obama had to retain or create jobs that were lost under Bush. The bail out of the auto industry kept people working and the extentions of unemployment insurance kept people from starving and able to remain in their homes. Republicans have a very short memories or do not take responsibility for what havoc they have wrought on America.
    Illegal activities, if you want an education on illegal activities, GOOGLE Bush Crime Family.

  8. palmcoaster says:

    Well said Riley! How further brainwashed these conservatives could be…? I keep my fingers crossed that our President starts to exercise his powers right now to resolve our nations urgencies and do it without trying to waste anymore time by reeling in these Republicans in Washington DC.

  9. clue says:

    @ riley and palmcoaster
    The then President needed a declaration of war… Which means congress had to approve/allow/issue, however you want to say it… So again you’re pointing that finger and will probably not like my opinion… Also our current president is only interested in fundamentally changing how we as Americans live. What has he done for you, what has he done for the economy, what has he done for Flagler County? NOTHING!!! What he has done is spend more money in 2 to 3 years which took Bush 8 years…

  10. Riley says:

    @clue
    Did Bush have a declaration of war? Here is a little civics lesson; CONGRESS makes that laws, the President doesn’t. The President tried to stimulate the economy and retain jobs or create new jobs. Check your facts on spending; Bush increased the national debt by 6 TRILLION dollars wasting the money with two wars and big tax breaks for the wealthy(must be you) and the bail out of the banks and wall street. Obama has spent 2 trillion on stimulus to benefit americans who lost their jobs as a result of Bush’s recession by extending unemployment and keeping millions of workers in their jobs with stimulus to the auto industry, teachers, police department, firefighters and middle class workers, not banks and big business, like Bush. Please get your facts straight!!!!!!!!!!!! I almost forgot the billions of dollars for Florida to create new jobs with high speed rail and money to improve infrastructure in Florida. Check with Rick.

  11. palmcoaster says:

    Outstanding reply from Riley, to Has No Clue!

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