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St. Thomas Law Review

First Page

247

Document Type

Article

Abstract

In 1979, Carl J. Peckingbaugh, in analyzing Askew v. Cross Key Waterways, observed that Florida appellate courts continue "to adhere to the non-delegation doctrine." Peckingbaugh characterized the Florida Supreme Court's attitude as a rejection of the modem trend in administrative law, a trend that accepted "the adequacy of procedural safeguards in the administrative process in lieu of strict legislative guidelines for the exercise of delegated authority." Eleven years later, Professor Johnny C. Burris argued that Florida appellate courts, while still ritualistically adhering to the traditional or strict non-delegation doctrine, had de facto adopted the modem or pragmatic Davis-test that had been seemingly rejected in Cross Key. Recent developments, however, might indicate that reports of its death could be greatly exaggerated. Two recent decisions have indicated that it is alive and kicking, resurrected, as it were, from the graveyard of legal antiquity. This article argues that both Peckingbaugh and Burris are, in a sense, correct. The present reality is, unfortunately, that the Florida Supreme Court adheres, simultaneously, to both the strict traditional doctrine and the modem or proceduralist approach. This article initially traces the development of both doctrines in Florida decisional law and suggests that the contradiction needs to be resolved. The article then suggests that the decisional conflict in Florida law reflects a long standing jurisprudential and constitutional dilemma that revolves around the proper role of administrative agencies in the American constitutional scheme of government. That debate, it is argued, is ongoing at both the state and federal level. The article also briefly discusses the perceived need that gave rise to the administrative state and produced the doctrinal controversy. Finally, the article argues that experience with unintended negative consequences of the proceduralist, or loose, approach to the delegation doctrine requires its rejection. Those consequences principally include the rise of interest groups, the abdication of legislative responsibility and the abandonment of the rule of law in contemporary government.

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