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Statutory NonDelegation- Learning from Floridas Recent Experie

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Statutory NonDelegation- Learning from Floridas Recent Experie

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experie Learning from Florida's Recent Experience in Administrative Procedure ReformJim RossiFollow this and additional works at: https://scholarship.law.van

derbilt.edu/faculty-publicationsCf Part of the Law CommonsRecommended CitationJim Rossi, ’Statutory Nort/Mqjnwif’: Learnmgjhw ftondits Recent Experien Statutory NonDelegation- Learning from Floridas Recent Experie

ce in Adntinutronue Procedure Reform, 8 Widener Journal of Public Law. 301 (1999)Available at: https://scholarshtp.hw.vanderbiltedu/facuIty-pubbcatioi

Statutory NonDelegation- Learning from Floridas Recent Experie

u/$35This Article bi brought to you far free and open access by the Faculty Scholarship it Scholarship^Vindefallt Law. It hit been accepted for inclus

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experienurki.u-illiamsửiivanderbiltedu.1999]-STATUTORY NONDELEGATION1': LEARNING FROM FLORIDA’S RECENT EXPERIENCEIN ADMINISTRATIVE PROCEDURE REFORMJim Rossi*

I. INTRODUCTION[T]o be blunt, the history of American administrative law is a history of failed ideas.1If Professor Mashaw’s observation rings true at Statutory NonDelegation- Learning from Floridas Recent Experie

the federal level, it might be said to hit US like a steamroller in the states. Most state administrative procedure acts (APAs) are of a more recent

Statutory NonDelegation- Learning from Floridas Recent Experie

vintage than the Federal APA, which was adopted in 1946. Thus, state APAs are more likely to reflect the fashion of the 1960s, 1970s, or 1980s than th

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experiecourts but state legislatures—hardly known for their competence, let alone their appreciation of administrative governance—are the source of new ideas

in administrative procedure. Also, state APAs are amended far more frequently than the Federal APA. Florida’s APA, for example, has been amended almo Statutory NonDelegation- Learning from Floridas Recent Experie

st every single year since its adoption in 1974. None of this should come as a surprise. States, after all, are laboratories of democracy and laborato

Statutory NonDelegation- Learning from Floridas Recent Experie

ries (like democracies) produce failed experiments as well as successful ones.In 1996 Florida adopted the most comprehensive set of changes in the his

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experieemor Lawton Chiles of aPatricia A. Dore Associate Professor of State Administrative Procedure, Florida State University College of Law. Thanks to Scot

t Boyd, Natalie Futch, Harold Kreot, Ron Levin, and Joshua Samoff for their comments on draft.1 Jerry L. Mashaw, Bureaucratic Justice 1 (1983).301Hoin Statutory NonDelegation- Learning from Floridas Recent Experie

Onlino — Ô Widonor J. Pub. L. 301 (199Ô-1999)302Widener Journal of Public Law [Vol. 8fifteen-member APA Review Commission. Following several months of

Statutory NonDelegation- Learning from Floridas Recent Experie

deliberations, the APA Review Commission produced proposals, which the Florida Legislature adopted with significant amendments and which Governor Chi

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experieive process.2 Following adoption of Florida’s 1996 APA reforms, I expressed cautious skepticism, characterizing them as a rulemaking "counter-revoluti

on":3 many provisions in the 1996 reforms pose a tension with the Florida Legislature’s traditional effort to favor rulemaking as the primary vehicle Statutory NonDelegation- Learning from Floridas Recent Experie

for the executive branch’s implementation of policy in the state.4 Writing today, I believe that it is highly questionable whether Florida’s 1996 amen

Statutory NonDelegation- Learning from Floridas Recent Experie

dments have achieved the objectives of the reformers. I think, however, the 1996 reforms provide a useful context for examining reforms in Florida and

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experielorida made to its APA in 1996 with the intention of enhancing the accountability of agency rulemaking, and I discuss the lessons other state reformer

s can learn from Florida’s experience. Part II of this Article discusses rulemaking authority under the Federal APA and the more restrictive approach Statutory NonDelegation- Learning from Floridas Recent Experie

many states take to ensure that agencies are accountable to the legislature in proposing rules. Some states, including Pennsylvania, have endorsed wha

Statutory NonDelegation- Learning from Floridas Recent Experie

t I will term "statutory nondelegation": This is a judicially-adopted or2See Final Report of the Governor’s Administrative Procedure Act Review Commis

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experieagency accountability to the Legislature and the general public*).3See Jim Rossi, The 1996Revised Florida Administrative Procedure Act: A Rulemaking R

evolution or Counter-Revolution?, 49 ADMIN. L. Rev. 345 (1997) (observing that Florida’s 1996 APA amendments were too fresh to provide sound data for Statutory NonDelegation- Learning from Floridas Recent Experie

criticism, but that they should be re-evaluated in the future when more data and anecdotes regarding then effects are available).‘Section 120.54(l)(a)

Statutory NonDelegation- Learning from Floridas Recent Experie

of Florida’s APA, added in 1991, requires agencies to use rulemaking to make statements of general applicability to the extent it is practicable and

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experieposcd clear statement requirement, suggesting that courts or administrative law judges (ALJs) review rules independently to ensure that they are based

in apparent and specific statutory authority, rather than promulgated under implied powers from general grants of authority. Similar to the nondelega Statutory NonDelegation- Learning from Floridas Recent Experie

tion doctrine, which exists in many states as a constitutional restraint on legislative delegations of rulemaking authority to agencies absent specifi

Statutory NonDelegation- Learning from Floridas Recent Experie

c statutory authority and standards, statutory nondelegation is intended to ensure that agencies are accountable to the will of the legislature. State

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":

Statutory NonDelegation- Learning from Floridas Recent Experie, Florida’s 1996 APA reforms exemplify a radical and strong version, similar to what the United States Congress considered more than twenty years ago

in the failed Bumpers Amendment to the Federal APA.In Part in of this Article, I discuss some of the problems with efforts to enhance accountability b Statutory NonDelegation- Learning from Floridas Recent Experie

y requiring statutory nondelegation in state APAs, using the recent Florida reform and its implementation as an example. Part rv discusses Florida’s 1

Statutory NonDelegation- Learning from Floridas Recent Experie

999 APA amendments, passed primarily as a reaction to legislative dissatisfaction with judicial interpretation of Florida’s 1996 APA amendments. In Pa

Vanderbilt University Law SchoolScholarship^Vanderbilt LawVanderbilt Law School Faculty PublicationsFaculty Scholarship1999"Statutory NonDelegation":