Constitutional Rulemaking: What Happens When the APA Doesn’t Apply?

Recent changes to Florida’s Constitution and the Administrative Procedure Act have raised questions about whether agencies can make rules outside of the normal procedures, and how people can challenge those rules. The Department of Health has been given the power to make rules about medical marijuana, and they argue that they can do this outside of the normal rules. This is the first time this has happened, so it’s unclear what procedures apply to these new rules. The Department of Health has made their own rules for making rules, and they have made rules based on those standards. The Department of Health (DOH) got new powers to make rules for medical marijuana after Amendment 2 passed in 2016. This means they can make their own rules, without following the usual process. People are now wondering if they can challenge these rules and how to do it. The Department of Health has to make rules for new medical marijuana dispensaries, and they have to make sure they follow strict guidelines for security, record keeping, testing, labeling, and safety. It’s a big deal because a lot of people want to open these dispensaries, and the rules for getting a license are tough. It used to be hard to get a license, and now it’s even harder because more people can get medical marijuana. The Department of Health (DOH) in Florida adopted its own rules for making regulations without following the usual procedures set by the state’s Administrative Procedure Act (APA). DOH claims to have the constitutional authority to do this. This means they can create rules without approval from the state legislature. However, this raises questions about the separation of powers outlined in the Florida Constitution, which divides the government into three branches – legislative, executive, and judicial. While the legislative branch is supposed to have the sole authority to make rules with the force of law, the DOH argues that the constitution allows them to make rules on their own. The Florida Department of Health (DOH) has been interpreting its constitutional authority to make its own rules without needing approval from the legislature. This is not completely clear, though, because there are no previous examples of a state agency like DOH having this power. The DOH has made rules that are similar to what the legislature would approve, but it’s not clear what would happen if the DOH made rules that went against what the legislature wanted. This is new territory and the courts would need to decide what the limits of the DOH’s power are. The Florida Supreme Court may not agree that the Department of Health can make rules without the legislature’s approval. The Court said the Department wouldn’t have too much power under a proposed amendment, but they didn’t look at it very closely. The Court probably won’t change their decision unless something really important comes up. It’s unclear what rules apply to challenge the Department’s actions under the new rulemaking power. The Department follows the Administrative Procedure Act, but there’s a question about what happens when an office has rulemaking power from the Constitution.

Source: https://www.floridabar.org/the-florida-bar-journal/constitutional-rulemaking-what-happens-when-the-apa-doesnt-apply/