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Executive Overreach? Supreme Court
Considers Rick Scott’s Rule-Making Powers

| June 29, 2011

rick scott rosalie whiley

She\’s blind, black and poor. He makes the rules.

The Florida Supreme Court considered Wednesday whether Gov. Rick Scott exceeded his authority in suspending state agency rulemaking.

Rosalie Whiley, a blind woman from Opa Locka near Miami, filed suit against Scott in March after the governor suspended the ability of agencies to draw up new rule. The lawsuit claims the executive order slowed down a process already in progress to make it easier for her to request food stamps.

Whiley has to reapply periodically to remain eligible for food stamps. Being blind, she needs help from a friend or relative every time she has to reapply. The length and complexity of the current food stamp application process makes that difficult, even through a third party, and she is forced to reveal personal information to those assisting her, when she’d rather not–if those assisting her are not close relatives. Reapplication would be easier if she could do so as food stamp recipients in other states, in compliance with federal law–by filling out an online form that includes her name, address and signature. Florida’s form doesn’t allow her to do so.

The Florida Department of Children and Families has acknowledged that Florida’s form violates federal law, and that it must change it to comply with federal law. That is, it must change the rule controlling the form.

Scott’s executive order now prevents the department from doing so.

“Although Executive Order 11-01 asserts as a primary impetus the curtailment of unnecessary restrictions on regulation of businesses and professions,” Whiley argues in her petition to the Supreme Court, “it even suspends rulemaking unrelated to its underlying objective. This sweeping dictate encompasses the rulemaking of more than a dozen state agencies that govern programs and services affecting the everyday lives of millions of Floridians. Indeed, the Governor’s broad prohibition has triggered suspension of rulemaking that is urgent to protect vulnerable low-income citizens of Florida.”

At the heart of Whiley v. Scott is whether the Governor or the Legislature has the ultimate say over agency rulemaking. A law that regulates how agency rules are set was established by the Legislature. But the governor issued an executive order shortly after he was inaugurated in January that froze agency rulemaking and established a new process for reviewing agency rules to ensure each meets his pro-business agenda.

That executive order has since been replaced by a new order issued in April that removes the freeze but establishes a new process for agency rule, which must now be approved by the Office of Fiscal Accountability and Regulatory Reform, a new entity overseen by the governor’s office.

Though not strictly spelled out in state law, agency rules can wield considerable influence over Floridians. There are dozens of state agencies that create rules to help implement laws. These rules range from environmental regulations to how someone applies for welfare and housing benefits or even the establishment of a new hospital.

Whiley was represented in court Wednesday by Tallahassee attorney and former Florida State University President Sandy D’Alemberte. Joining him in opposition to Scott’s rulemaking authority were lawyers for an environmental group and several disability and elderly rights groups.

D’Alemberte told the Supreme Court justices that Scott’s executive orders conflict with a Legislature-approved process already in place.

“We are not here on a rule challenge,” D’Alemberte said. “We are here on questions of the governor’s authority to issue executive orders that conflict with procedures set forth by Legislature.”

But Charles Trippe, the Governor’s attorney, said Scott has the constitutional authority to oversee rulemaking as chief executive of the state and contends the executive order does not interfere with the Legislature’s control.

“The governor’s power and duty is provided directly by the constitution,” Trippe said.

He also pointed out to reporters after the hearing that the facts underlying Whiley’s case are incorrect. He said the particular rule that Whiley said was stalled was “turned around in 24 hours.”

Cindy Huddleston, an attorney for Tallahassee-based Florida Legal Services, said there was “considerable delay” in implementing a new rule that made the food stamp application process easier.

Justices peppered both attorneys with questions. Justice Fred Lewis asked how this lawsuit relates to a new state law (HB 993) that recognizes Scott’s new role in agency rulemaking.

D’Alemberte said he is not quibbling over the governor having the ability to review rules, just the additional layer of oversight that slows down the process and weakens public input.

“The issue is ‘Can the governor stop rulemaking authority, or if by doing that is he acting outside executive branch role and encroaching on the legislative branch?” said Supreme Court Justice Barbara J. Pariente.

But Supreme Court Chief Justice Charles Canady had a different take on the issue.

“We are talking about administrative rule making,” Canady said. “Law making is a legislative function and the parameters for administrative rulemaking is satisfied by the Legislature. Who promulgates the rules? It is the executive branch.”

Not all justices asked questions during the nearly hour-long proceeding. D’Alemberte declined to assess his chances at winning, saying he “quit predicting” outcomes.

After the hearing, attorneys for Whiley said the lawsuit is not just a theoretical argument about the governor’s power. Any change to the rulemaking process would impact millions of Floridians, they argue.

“Water quality standards are done through rulemaking and a number of other protective measures,” said Anna Upton, an attorney with the Florida Audubon Society. “With a suspension on rulemaking everything has just stopped in its tracks. It is very harmful to environmental interests.”

Environmental groups have reason to fear Scott’s increased interest in rulemaking because he has stated he wants to review rules to make sure they are not an impediment to business. Many Republicans, including Scott, view some environmental regulations as getting in the way of business growth.

Attorneys who work with the disabled, poor and elderly said they are particularly vulnerable to delays or changes in rulemaking because they rely so much on help from the government.

“It makes a really big impact on rulemaking for our clients, people who rely heavily on public assistance just to keep food on their table, to pay to go to the doctor for necessary medical expenses,” Huddleston said. “Rulemaking is vitally important to them.”

–Lilly Rockwell, News Service of Florida, and FlaglerLive

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7 Responses for “Executive Overreach? Supreme Court
Considers Rick Scott’s Rule-Making Powers”

  1. Eleanore Lee says:

    Excellent article. In fact, this is the most thorough and accurate I’ve read so far.

    I do take issue with a couple statements: Firstly, OFARR was essentially created by Executive Order 11-01; it did not come into being with EO 11-72.

    Secondly, the ultimate challenge is not about extra “oversight” that may “slow” the rulemaking process. The issue is, pure and simple, whether the Governor has the authority to create an “office” like OFARR that can actually STOP rulemaking before it even happens. No ability to appeal, no actual reason given, OFARR can tell you that you can’t even notice a rule in the FAW.

    This is plainly unconstitutional, as the only reason agency rulemaking — “delegated legislative authority,” in legal terms — has been upheld as constitutional (and not in violation of the separation of powers) is precisely because the authority is given to the agency head, who has expertise in the particulars of the agencies operations.

    Frankly, the legislature does not have constitutional authority to delegate its legislative functions straight to the governor. That is what Pariente’s line of questioning was trying to get out of D’Alemberte, unsuccessfully.

    Also, a curious thing that was not mentioned is that in EO 11-01, the governor ordered that the Bureau of Administrative Code not publish any rule notices that hadn’t been approved by OFARR. EO 11-72, however, removed that restriction such that technically, an agency can submit a notice that’s not been approved by OFARR for publication.

    Of course, Scott will just fire the agency head for doing so… or would he dare?

  2. palmcoaster says:

    Rick Scott a fascist at work. Lets vote out all legislators that voted against recall in Tallahassee.

  3. Bob Z. says:

    And to think that we still have over 3 years of Gov. Scott remaining.

  4. palmcoaster says:

    This fascist parties with the rich while attacking and undermining the workers, their unions and the poor. There goes our tax dollars to wine and dine the wealthy. This France Nascar family that pays, a peanuts lease for the taxpayers owned Daytona Speedway Racetrack, besides controlling every single official elected in Daytona, Volusia and Tallahassee. Lets see now how many more alcohol sales tax breaks and tax incentives/refunds on our pockets this governor will give the already 500 Fortune richest listed Frances. Then: Lease now: Now, take a good look a Daytona Beach and tell yourselves how obvious; crime, poverty, blight and corruption shows allover “the great benefits that Nascar alleged 800 million/year revenue contributes to all that”, except on that billionaires France’s Nascar Speedway! On top of it, this governor uses our tax dollars to dine and wine these greedy billionaires always asking for more breaks and benefits on the backs of all the Daytona and Volusia taxpayers. Lets demand that he pays for this party and not on my hard earned tax dollars.

  5. palmcoaster says:

    “I think the Speedway does a great job in the area as far as economic impact goes, and I think this is an area where you can help the people who are very involved with the sport,” Davis said….Horse’s dung!!
    Oh Yeaaah the Nascar business does great for Daytona’s local economy…just drive around and “enjoy the blight, prostitution, drug deals, child predators, crime, poverty and official corruption allover . Also:
    Then this Rep…kans attack unions for campaign contributions on behalf of their work. Fascist! these workers wont vote for you…for a while if the current harsh lessons learned.

  6. palmcoaster says:

    This is what the Frances Nascar bring to Daytona…the very one’s being dine and wine on our pockets by Rick Scott now:

  7. palmcoaster says:

    This is what happens in Florida and the nation while this governor Scott wines and dines billonaires on our hard earned taxes.

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