The Florida governor may look like he’s engaging in a power grab, but as the executive, he’s standing up for a core rule-of-law value.
The Florida governor may look like he’s engaging in a power grab, but as the executive, he’s standing up for a core rule-of-law value.
T he rule of law is vital to the American system of government. Our system is designed, in the words of John Adams, “to the end that it may be a government of laws and not of men.” That core value imposes a variety of different obligations on different actors in the system. Today’s big announcement by Ron DeSantis, suspending a county attorney who refused as a matter of policy to enforce Florida laws he disliked, highlights one of those obligations: the duty of the executive to enforce the laws written by the legislature.
The people choose the government and retain the power to remove its officials: That makes us a democracy. Nobody has an inherited role or a privileged status above the law: That makes us a republic. The rules are written down: That makes our system constitutional. The rule of law binds these strands together. Once the constitution and the laws are written down, there are only two choices: Challenge the laws in court as conflicting with the written constitution, or change the constitution or the laws through the democratic process. In the meantime, there are only two outcomes: Either the rules are binding as written on everyone, or the people are no longer in charge of the government.
Adams used the phrase “a government of laws and not of men” in the Massachusetts Constitution of 1780 to justify the rigorous separation of powers: Only the legislature writes laws, only the executive enforces them, and only the judiciary interprets them. John Marshall used the same phrase in Marbury v. Madison to emphasize a related but distinct point: Judges have not just the power to declare laws invalid if they violate the Constitution, but a duty to do so in order to restrain the legislature: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished. . . .”
Marshall’s point is an important one: The rule of written law is a restraint on action, but it is also a command to act. If actors in the system do not carry out their assigned roles, others will be able to escape their restraints. The rule of law is always a two-way street. The two-way value is tested in controversies such as whether to prosecute Donald Trump. On the one hand, the rule of law is degraded if Trump’s status as an ex-president is grounds to never charge him with a crime; on the other hand, the rule of law is also degraded if he is charged under a novel and creatively expansive theory of the law just because of who he is. The same goes for prosecuting cops.
The rule of law matters within the executive branch, and it runs both ways there as well. Because the president and the administrative agencies are not empowered to make the laws — and neither is the typical governor, mayor, or district attorney — executive power may not be expanded into the area of lawmaking by executive orders or administrative agency rules. But it is just as much a violation of the rule of law, and just as much an assault on the democratic and constitutional nature of our system, for executive officials simply to nullify laws by a blanket refusal to enforce them.
Of course, executive officials — presidents, governors, prosecutors, cops — have always had discretion in individual cases, and even in some classes of similarly situated factual situations, in deciding when a law will not be blindly enforced to the letter where the evidence is dubious or application of the law would work some clear injustice not intended by the legislature. Indeed, laws are typically written with a baseline faith in the common sense of the authorities enforcing them. But that is quite different from declaring to the citizenry that whole categories of offenses will not be enforced.
Likewise, there are some situations in which an executive’s oath to the federal and/or state constitutions require or permit the executive to determine that a particular law is unconstitutional and decline to enforce or defend it. The scope of that power or duty, however, has been a hotly contested one, and it is subordinate to the final say of the courts. It should never be used to simply nullify a law so that the courts do not even get the opportunity to decide the law’s validity in an adversarial proceeding in which the people are represented by someone committed to defending the law they made.
Each of these components of our rule-of-law system is anathema to progressives. Under the progressive idea of supervised democracy, the power of the people to make laws is subject to supervision and review by a variety of elite checks, including elected and unelected executives deciding which laws not to enforce and which offenders to treat with mass amnesty, a “Deep State” or “experts” and bureaucrats in areas such as national security and public health deciding which presidential and gubernatorial policies they will not follow, and judges declaring some topics off-limits to democratic self-government based on an “evolving” rule nowhere written in our constitutions.
The fad for progressive district attorneys deciding that they will not enforce whole swaths of law has been one of the distinguishing features of this regime. Many of those DAs are elected officials, but they are still local officials charged not only with enforcing written laws, but often written statewide laws that are supposed to be binding on them. So it is with Hillsborough County state attorney Andrew Warren.
Warren, a Democrat, holds an elected position equivalent to a district attorney in other states, covering Tampa and St. Petersburg. He signed a public letter refusing to enforce Florida’s 15-week abortion ban or its partial-birth abortion ban. While that could arguably be defended on the theory that the 15-week law is unconstitutional under Florida law (a matter sure to be decided in the near future by the Florida Supreme Court), this was a joint statement with prosecutors across the country, and not targeted to an argument under Florida law. Instead, in the sections cited in the order issued by DeSantis, Warren joined other prosecutors in declaring himself above his own state’s laws and committed to a campaign of massive resistance to those laws:
We [the undersigned prosecutors] decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who . . . provide, or support abortions. . . . Our legislatures may decide to criminalize personal healthcare decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people. (Emphasis added).
Warren was the only county attorney in Florida to sign the letter. This is hardly the only example; another joint letter Warren signed with many prosecutors inside and outside Florida pledged “to use our discretion and not promote the criminalization of gender-affirming healthcare or transgender people.” DeSantis cited additional policies such as “presumptive non-enforcement for certain criminal violations, including trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution” and “against prosecuting crimes where the initial encounter between law enforcement and the defendant results from a non-criminal violation in connection with riding a bicycle or a pedestrian violation.”
As DeSantis emphasized at his press conference, “Our government is a government of laws, not a government of men. . . . We are not going to allow this pathogen of ignoring the law get a foothold here in the state of Florida. We are going to make sure our laws are enforced and that no individual prosecutor puts themselves above the law.” The governor continued: “To take the position that you have veto power over the laws of this state is untenable.” DeSantis argued that a prosecutor may not use his discretion “to effectively nullify what the legislature has done.” He had Warren escorted out of his office.
As a matter of core democratic rule-of-law principles, DeSantis is absolutely right on this. This is not the first time that DeSantis has used this power: He suspended Broward County sheriff Scott Israel after Parkland, Palm Beach supervisor of elections Susan Bucher for the failure of Broward and Palm Beach counties to meet ballot-counting deadlines in 2018, and the superintendent of Okaloosa County Schools over a grand-jury report of abuse of special-needs kids in her district. This is a more confrontational approach than taken by Rick Scott, who simply removed capital cases out of the hands of a county attorney who refused to use the death penalty.
Whether the Florida courts back DeSantis’s authority to suspend Warren under Florida law remains to be seen, but Warren will have an uphill battle. Article IV, Section 7(a) of the Florida Constitution explicitly empowers this sort of action:
By executive order stating the grounds and filed with the custodian of state records, the governor may suspend from office…any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension.
Moreover, the power to review DeSantis’s decision rests primarily with Florida’s Republican-controlled senate, which is likely to back him up, rather than with the courts. Section 7(b) of the Florida Constitution empowers the Florida Senate to “reinstate the suspended official [in a] special session by its president or by a majority of its membership.” As the Florida Supreme Court reiterated in 2019 when it upheld DeSantis’s suspension of Israel, the state’s longstanding rule is that judicial review is limited to deciding whether the facts recited by the governor amount to a legally sufficient case for suspension. So, if Warren wants to argue that he is not actually guilty of neglect of duty, he has to present his case to the Florida Senate, not to the courts.
Can Warren convince the courts that the refusal to enforce whole categories of law is not what “neglect of duty” means under Florida law? That is likewise dubious. In Israel’s case, the Florida Supreme Court read “duty” broadly to encompass not just non-discretionary duties commanded by statute, but also such matters as Israel’s failure to provide proper training and protocols for mass-shooting situations. In State ex rel. Hardee v. Allen (1937), cited by DeSantis in his order, the Florida Supreme Court upheld the governor’s removal of Tampa’s prosecutor on the basis of an order alleging that gambling was widespread in the county and citing the near-total absence of gambling prosecutions. The court concluded that “to knowingly permit gambling and prefer no charges therefor was a neglect of duty,” and would not consider the question in further depth: “The character, sufficiency, weight, and all things pertaining to the evidence were questions for the Senate, with which the Court has no concern.”
Once again, DeSantis has picked a battle where his powers of office appear to be firmly arrayed behind him, his chosen fight intersects between conservative cultural causes and a broader law-and-order value, and he is speaking simultaneously to state and local voters concerned about irresponsible progressive district attorneys and national voters looking for someone to tame the administrative state. In that sense, this is politically shrewd. It is also a welcome stand for democratic, republican, constitutional government under a rule of written law.