Sunday, July 10, 2011

Governor Daniels Needs to Call General Assembly into Special Session To Fix Inadvertent Elimination of FSSA

Over at the Indiana Law Blog, Marcia Oddi provides excellent details regarding the inadvertent elimination of the Family & Social Services Administration (FSSA), the state's longest session.  In the summary of what happened she includes the following:
So now the Governor has taken action to reinstate FSSA by executive order (EO).

The EO states that it is clear that the repeal was a mistake, since the General Assembly also appropriated money to the agency and "enacted other legislation evidencing its intent that the agencies continue to carry out their mission and services." The Governor also asserts that he can create administrative agencies by executive order.

Can the Governor really do this, legally? It is doubtful. But will anyone effectively challenge it? It seems unlikely, and would be destructive.
I agree it is highly doubtful Governor Daniels has the authority to reinstate the FSSA through an executive order.  I do fear legal challenges down the road. While the executive order might be a necessary stop gap measure, Governor Daniels needs to call the Indiana General Assembly back into a special summer session to fix the problem.  This is simply too big of a mistake to leave to the the hope actions of the FSSA won't be challenged.

I would also point out that the legislators should want to come back to session to fix the problem. If the General Assembly lets this stand without an interim legislative fix, that creates a precedent that the Governor can take sweeping legislative-type actions with the stroke of his executive pen.  Do legislators want to defer that sort of sweeping power to the Governor?  I would think not.


Nicolas Martin said...

The best thing that has happened to Indiana in generations and you want to "fix" it?

What do you call the elimination of FSSA? A good start.

Gary R. Welsh said...

The budget bill contains funding for the agency. If it has been the legislature's intent to abolish the agency, which everybody knows is not the case, it would not have been funded. The executive order under these circumstances is highly appropriate and sufficient until the legislature restores the enabling legislation.

Paul K. Ogden said...


I think it's sufficient only as a stop gap measure until the legislature can get to Indy to act. You're talking a one day session. Clearly it was not the legislature's intent to get rid of the agency...but we've seen court's ignore legislative intent before.

Bradley said...

Just a hypothetical here, but could somebody who wants to sue FSSA for whatever reason (and there are so many long-standing lawsuits again FSSA right now from what I have seen) have a point that, if something occurred that requires a lawsuit after June 30 but before the legislature acts, that FSSA was not an entity (according to statute) during that time period? I'm not a lawyer, obviously, but as Paul said a judge could ignore intent based on a technicality like this, right? Just wondering what everybody's take would be.

Indianapolis Observer said...

This Indianapolis Observer is chuckling at the juxtaposition of this item with the previous.

Certainly "America's worst legislature" couldn't possibly be guilty of killing an agency in one bill that it funded in another!

Cato said...

Who would challenge it? Our courts won't give anyone standing, so the government can do whatever it wants.

Cato said...

By the way,a court is supposed to obey a plain reading, first, not fill in legislative gaps.