Tuesday, August 30, 2011

Supreme Court Rules Rick Scott Ignored State Laws, Acted Unconstitutionally

Almost two weeks ago the Florida Supreme Court ruled that Governor Rick Scott acted unconstitutionally in holding up state regulations.

Travis Pillow wrote the following for The Florida Independent:
Gov. Rick Scott suffered a legal setback Tuesday when the Florida Supreme Court ruled that an effort to hold up new state regulations was unconstitutional, but the practical effects of the decision are still unclear.

As part of his efforts to “hold government accountable” and crack down on “job-killing” regulations, Scott issued a temporary freeze on new regulations in one of his first formal acts as governor. Executive order 11-01 also created the Office of Fiscal Accountability and Regulatory Reform (aka OFARR), which was charged with reviewing new and existing rules to ensure they did not exceed legislative authority or stymie job creation...

The Supreme Court’s majority opinion, joined by five justices, supports the petitioners’ argument that Scott did not have the power to hold up the rulemaking process by requiring new rules to be approved by the office.

In their arguments before the court, Scott’s lawyers held that he was acting under the “supreme executive power” granted to the governor by the state constitution, and argued that because the heads of executive agencies serve at the pleasure of the governor — meaning he can fire them if he disagrees with their decisions — he could assert authority over how they conduct rulemaking. Tuesday’s opinion, however, holds that “the power to remove is not analogous to the power to control.”

Scott’s advisers said Tuesday’s ruling failed to show proper deference to the executive branch, and that if there was any way the governor’s efforts could conceivably be ruled constitutional, the court should have allowed them to stand.

“It doesn’t make any sense to me,” Scott said, adding that he felt his executive order was in line with his power to supervise the heads of executive agencies.
The laws are pretty clear regarding the rule-making process.

From the Florida Department of State:
Rulemaking is a multi-step process that includes:
(1) Drafting the rule or rule amendment;
(2) Approval of the rule or rule amendment by the appropriate agency official;
(3) Publishing a Notice of Proposed Rule Development in the Florida Administrative Weekly;
(4) Publishing a Notice of Proposed Rulemaking in the F. A . W.;
(5) An opportunity for public participation by means of notice, a 21-day public comment period, and public hearing, if requested by an affected party or at the discretion of the originating agency;
(6) A hearing before the Division of Administrative Hearings on the validity of a rule may be
required if a proper petition challenging the rule is filed by a substantially affected person;
(7) If necessary, changes in the rule or rule amendment by the originating agency following the
Notice of Proposed Rulemaking, based on comments and materials received during the public
comment period or hearing, or in response to comments or objections from the Joint Administrative Procedures Committee. Notice of these changes must be published in the F. A . W. at least 21 days prior to adoption and shall be filed with J.A.P.C. If no changes are made or only technical changes are made, the originating agency shall notify J.A.P.C. of that fact at least 7 days before adoption;
(8) Preparing the rule or rule amendment for adoption with A.C.S.;
(9) Filing the rule or rule amendment for adoption with the A.C.S., which becomes effective 20
days after filing, or at a later date specified in the rule.
Rick Scott, and only one of the justices, believed his "supreme executive power" allowed him to circumvent the law - notably step five regarding public participation - and decide what rules can and can't take effect.  Scott believes that because he is the governor, he can do anything he wants.  His logic asserts that since he was elected by a plurality (not a majority) of the people and because he appoints these agency heads, he has essentially the same power those people hold.  Rick Scott still believes he is a CEO of his own company but that is far from reality.  Every Floridian should find it appalling that Scott wants to avoid public participation.

Scott still doesn't understand why the courts ruled against him and his legal team are trying to figure out how to circumvent.  Scott wants to hold up any agency from acting by requiring them to contact his bureaucratic office for approval and if they don't do so, they can't proceed.  Sounds like he is trying to usurp power from the legislation to establish his vision.

That doesn't stop conservatives from trying to push the idea that Rick Scott is the popular governor he thinks he is - while most polling agencies place Scott's approval rating in the mid-30s range and showing wide-spread disapproval for him (although a slightly higher approval rating for some of his policies), conservatives are trying to find any way they can to paint the governor in a positive light.  Conservative pollsters McLaughlin & Associates peddle their push poll as proof many Floridians like the policies of Rick Scott but haven't quite warmed up to the man, but if you look at their questioning you would understand why their numbers are what they are.  

Consider this "question" - the poll asks respondents how they feel about Rick Scott's policy of "reforming the state pension system so that state workers contribute to their own retirement, just like workers in the private sector."

Public workers already contribute to their pensions as part of their compensation package.  Just because it is not part of their take-home-pay does not mean they do not pay for their retirement -  just consider recent passage of legislation that decreases public worker pay shifting that money to their retirement.

Why would anyone trust a polling agency that touts "working with House Majority Leader Eric Cantor to help him win a majority in Congress?"


  1. The entire GOP is on a power trip that is going to come crashing down on their puny brains. Every one of them thinks he is above the law...look at the Cheney interviews...no regrets, no breaking of the Constitution, just business as usual. And all the new Governors thought they were given carte blanche to do whatever they wanted to...surprise...people are watching, and those people will be voting you all out ASAP.

  2. I'm still a little skeptical that the public is watching as closely as I would like them to be. Between their laziness and conservative misinformation spoon-fed to them through the "liberal" media, the public is rather stupid and will vote these unconstitutional warriors back in if they are promised the world...


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