The historical development of executive branch oversight and control in Florida: 1838-1968.

• Author: Miller, Eric (American college teacher)

ABSTRACT

This article explores the historical context and development of Florida's constitutional provisions on the organization and authority of the executive branch. The next Florida Constitution Revision Commission is due to meet in 2018 and will consider revisions to any part of the constitution, including changes or deletions to archaic language. (1) Since this article explains the intent, context, and enduring relevance since 1838 of certain terms pertaining to executive power, the topic is timely and useful to any considering constitutional revisions.

From the ratification of the U.S. Constitution to the drafting of Florida's first constitution in 1838, the nature of the executive power was understood as including not only that authority expressly allocated in the constitutional text but also that authority necessary to meet fully the duties placed on a chief executive, whether federal or state. Vested executive authority thus inherently includes the power and responsibility to supervise and control subordinate officials unless particular offices are excluded from the chief executive's authority.

State constitutions adopted between 1787 and 1838 vested most governors with the "supreme executive power." (2) The U.S. Constitution uses "supreme" to distinguish the hierarchy between the Supreme Court and the lower courts, a distinction not needed in the federal executive article because the presidency is a unitary executive. As states vested political power in three governmental branches, and further limited that power through intra-branch divisions, using "supreme" in the executive context intended a similar hierarchal structure for the executive branch of state government, with the governor responsible for exercising executive power not otherwise allocated. This understanding informed the framers of Florida's first constitution and was carried forward by each subsequent iteration to the present version.

Keys to the history of the present executive article are the basic allocation of executive responsibility and power in each version of the Florida Constitution dating back to 1838 and the development of article IV, section 6, of the present constitution, authorizing the reorganization of the state executive branch. Contrary to a recent conclusion of the Florida Supreme Court, the historical record shows the Florida Legislature, as framers of the state constitution, expressly considered and rejected legislative control over executive branch supervision of subordinate officials.

TABLE OF CONTENTS INTRODUCTION I. THE STRUCTURE OF THE EXECUTIVE BRANCH IN FLORIDA II. 1787-1846: THE ARTICULATED CONSTITUTIONAL CONTEXT OF THE EXECUTIVE BRANCH A. The Power of the Federal Executive B. The Federalist Perspective of the Executive C. 1789: The Congressional Debate on Executive Authority D. Andrew Jackson and the Authority of the Executive E. Contemporaneous Allocations of Executive Authority in State Constitutions III. THE CONSTITUTION OF 1838: FLORIDA'S FIRST VESTING OF EXECUTIVE POWER IV. 1868-1885: THE RECONSTRUCTED EXECUTIVE. V. 1885-1966: THE RESTRICTED EXECUTIVE VI. 1966-1968: CREATING THE MODERN EXECUTIVE A. Preliminary Concepts for the 1966 Study Commission B. Debate in the 1966 Study Commission on the Scope of Executive Authority C. 1967-1968: Drafting and Ratifying the New Constitution 1. August 1967: Primacy of Elected Constitutional Officers Over the Executive Branch 2. 1968: Final Version of the Constitution Submitted to the Voters CONCLUSION INTRODUCTION

To whom are government officers accountable? This seemingly simple question has been settled in Florida by the adoption of a republican form of government incorporating the principles of representational democracy. (3) While the whole political power is held by the people, (4) as in all other states, Florida vests different aspects of that power in the three branches normative of the American form of government: Legislative, Executive, and Judicial. (5) Thus, the apparent answer to the question is that government officers are accountable to the people.

More importantly, how do the people hold their government officers accountable? Many first learned in their middle school civics classes (6) that legislators, executive officers such as the governor, and judges are all held accountable by standing periodically for the votes of the electorate. While true, that does not fully answer the question; after all, far more people work in administrative agencies than are regularly elected. How are these folks held accountable for exercising part of the sovereign power of the state, however small? Until recently, that question also had a straightforward answer in Florida, linked in part to the branch in which one served.

Since 1845, the Florida Constitution has vested the people's political power in their government, subject to express limitations. (7) The legislative power is vested in the Florida Legislature, not individual legislators, consisting of the senate and the house of representatives and is exercised properly by each chamber only by action of the entire membership. (8) The judicial power is distributed among the specified courts according to express provisions for their respective jurisdictions. (9) The executive power is vested in the governor except where express allocation of power is made to another executive entity, such as the chief financial officer. (10) These internal divisions point out a second method to check the exercise of power: in addition to express limitations on the scope of a branch's power, the state constitution divides the power vested within a branch to limit further the exercise of power by any one individual or group.

The Florida Constitution contemplates the employment of personnel within each branch to assist the officers with the execution of their duties (11) but expressly creates only a few specified positions. (12) Unless the oversight of an appointed position is limited by the constitution itself (13) or when provided by law, (14) subordinates appointed by and serving at the pleasure of an authority within one branch remain subject to that authority's direction and supervision. Thus the answer for Florida to the original question, developed from the text of its constitution, is those exercising the power vested in a particular branch are under the authority of the electorate, and subordinate appointees within a particular branch answer to their appointing authority.

Or so it seemed. With its opinion in Whiley v. Scott, (15) the Florida Supreme Court eschewed 166 years of Florida's experience with the constitutional establishment of executive authority and inverted the principle of vested, separated powers. The majority opined the governor lacked constitutional or statutory authority to direct or supervise those subordinate agency heads he appoints and who serve at his pleasure when they exercise administrative rulemaking authority delegated by the legislature. Finding no express statute that authorized gubernatorial participation in the creation of policy by most administrative agencies through the rulemaking process, the majority ruled the governor could not direct or supervise rulemaking by any agency of which he was not directly made the agency head by statute. In other words, short of dismissal, the governor effectively had no authority over the formulation and implementation of policy by specific at-will, appointed executive branch employees. To reach this conclusion the majority adopted a rationale without historical, precedential, or constitutional support.

Whether the Whiley opinion has significant, long-term consequences is debatable. (16) If the opinion binds the constitutional office of the governor, the case was not a momentary exercise of political one-upsmanship against the current occupant but a permanent alteration of the relationship between all future governors and their at-will appointees. If the opinion is binding, then the court majority recalibrated the balance of power between the legislative and executive branches by uncovering some previously-overlooked power inferred from the 1968 Florida Constitution, a power enabling the legislature to apportion executive power to be exercised by subordinate administrative officials independently from the governor. The majority acknowledged as much by inviting the legislature to address the conclusions of the decision through statutory amendment.

The legislature accepted the court's invitation. During the 2012 Session, the legislature passed House Bill 7055 (CS/HB 7055) (17) to resolve certain issues arising from legislative delegations of rulemaking authority, including the extent of executive supervisory authority, and the elimination of redundant, unnecessary, or obsolete statutory rulemaking authorizations. The proposed bill thoroughly considered the present text of the Florida Constitution; the historical derivation of the constitutional language; the statutes creating and placing executive agencies under agency heads appointed by the governor or other elected officials; decisions of the court interpreting the extent of executive authority; and the understanding of executive power demonstrated by the policies and actions of prior governors. While CS/HB 7055 prospectively rebalanced the relationship between the governor and other elected officials with those agency heads appointed by and serving at the pleasure of such authorities, legislation alone cannot restore the integrity of the constitution.

This article examines Florida's historical derivation and implementation of the constitutional language defining the relationship between the governor and those appointed agency heads serving at the governor's pleasure. (18) Tracing the development of the scope of "executive power" from the Federal Constitution, contemporaneous state constitutions, and political authorities, I argue the framers of Florida's constitutions from 1838 through 1968...