Gov. DeSantis is right: He can’t increase or extend unemployment benefits

Florida’s unemployment-benefits system is a mess. During former Republican Gov. and current Senator Rick Scott’s tenure, the state spent almost $78 million on the system. But the system was designed to fail—to make it harder to get benefits, to keep our state’s unemployment numbers artificially low. And fail the system did. The economic havoc wreaked by the coronavirus pandemic led massive numbers of Floridians to apply for benefits. The system was quickly overwhelmed, and the state processed payments much too slowly. Current Gov. Ron DeSantis, a Republican, recognized the problem and has thrown a lot of resources into fixing it. But while processing has picked up speed, Florida is still the slowest in the nation. Of nearly two million claims submitted, the state has processed almost 700,000. Of those, it has granted 61.6% of the claims and denied 38.4%.

But fixing this dysfunction is not the only thing the governor is under pressure to do. Florida law caps weekly benefits at $275 and the duration at only twelve weeks unless the state’s unemployment rate increases. These are among the stingiest unemployment benefits in the country.

Among others, Florida’s congressional Democrats, Florida’s state Senate Democratic caucus, and the Florida AFL-CIO have called on Gov. DeSantis to take executive action to increase and extend benefits. They claim the governor has the legal authority to take such action. For instance, Rep. Charlie Crist, a former Republican governor but now a Democrat, has pointed to his own actions in office. During the Great Recession in 2010, he purported to invoke his emergency powers to extend temporary unemployment benefits. And state Sen. Jose Javier Rodriguez, a Democrat, claimed “emergency management powers in state statute 252.36 permit suspension of regulatory statutes, appearing to encompass action affecting Chapter 443,” which governs unemployment benefits.

The governor’s spokesperson, Helen Aguirre Ferré, told Politico that the governor doesn’t have the authority to increase or extend benefits:

“Under Chapter 252 Florida Statutes, the Governor may suspend any regulatory statute prescribing procedures for state business in order to cope with the emergency,” Ferré said in an email. “Completely waiving the $275 per week unemployment cap exceeds this authority as the Legislature has set this specific amount in law.”

According to the same Politico article, Gov. DeSantis said the same thing:

“I don’t think emergency powers mean that you can appropriate new money beyond what the Legislature has set out,” DeSantis told reporters at the Capitol. “I could just start spending money on whatever I wanted regardless of what the Legislature has done.”

There are a couple things the governor has done, however. First, he issued an executive order on April 16, No. 20-104, waiving a statutory requirement that claimants report every two weeks that they are actively seeking work. DeSantis did this to ease the burden on the unemployment-benefits system as well as make it easier for Floridians to get benefits. Implementation of the order reportedly has not been smooth. (Update: The Florida Department of Economic Opportunity has extended its executive order waiving the requirement until May 9.) Second, the governor had also been under pressure to make benefits retroactive to the date of job loss because of the difficulties so many have had in completing applications. Under a Florida administrative regulation, it’s the date of completion of the application, and not job loss, that benefits are tied to. The state has agreed to retroactivity from the date a person would have applied if the system had been working.

Those who have read my articles in Slate know I’ve not shied from criticizing Gov. DeSantis when he has violated the state constitution or considered doing so. But credit where credit is due: Gov. DeSantis is right that he can’t increase or extend unemployment benefits.

Separation of powers and the power of the purse

Let’s talk about the legal framework. Article II, section 3, of the Florida Constitution says:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

This provision expressly codifies the separation-of-powers doctrine. The Florida Supreme Court strictly applies the doctrine. The court has written that “[t]he doctrine encompasses two fundamental prohibitions,” the first of which “is that no branch may encroach upon the powers of another.”

Increasing or extending benefits is about money. The Florida Constitution is very clear on which branch of government possesses that power. Article VII, section 1, provides: “No money shall be drawn from the treasury except in pursuance of appropriation made by law.”

The Florida Supreme Court discussed this power at length in the 1991 decision in Chiles v. Children A, B, C, D, E, & F. Drawing on decades-old case law, the court said “this Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes.” The court quoted another of its cases, from 1935, where the court said the appropriations clause “secures to the Legislature (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government.” (Emphasis added.)

Statutes create the framework for how revenue is received and segregated. One statute provides that all revenue “shall be promptly deposited in the State Treasury, and immediately credited to the appropriate fund as herein provided.” Another statute mandates revenue be segregated into the General Revenue Fund, trust funds, and the Budget Stabilization Fund.” And still another statute says that “[a] trust fund may be created by law only by the Legislature.”

Conditions for paying unemployment benefits

One of those trust funds is the Unemployment Compensation Trust Fund, which the legislature created in Florida Statutes § 443.191. It “is the sole and exclusive source for paying reemployment assistance benefits.” That’s the purpose. The legislature set the how and when—the conditions for disbursing money from the fund—in other statutes.

The first statutory provision is Florida Statutes § 443.111(3). It sets the weekly benefit amount. The provision caps the maximum amount a claimant can receive in a week at $275. The legislature has said exactly how much the state will spend for each claimant per week. Gov. DeSantis is right that he has no authority to increase benefits beyond the amount fixed by the legislature.

The same is true about the duration of benefits. In § 443.111(5)(c), the legislature provided that, when the “state’s average unemployment rate is at or below 5 percent,” the duration of benefits is limited to twelve weeks. When the unemployment rate increases, so does the duration, but the maximum is twenty-three weeks. The legislature has said for how long it will pay claimants. The governor cannot decree that he will pay them longer, which will increase the amount of money taken from the trust fund. Then-Gov. Crist likely exceeded his constitutional authority in 2010 when he issued the executive order extending benefits. His worry about being sued was justified.

Those calling on Gov. DeSantis to increase and extend benefits are asking him to violate our state’s strict separation of powers. The governor doesn’t have the emergency powers they claim. Let’s go back to what state Sen. Rodriguez claimed, which is that “emergency management powers in state statute 252.36 permit suspension of regulatory statutes, appearing to encompass action affecting Chapter 443.” That’s not exactly what the statute, § 252.36(5)(a), says. During a state of emergency, the governor may:

Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency, if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.

(Emphasis added.) As regards statutes, that’s a narrow authority. The statute creating the conditions the legislature has set on the payment of unemployment benefits cannot reasonably be considered such a statute.

“Actively seeking work” requirement

What about Executive Order No. 20-104? There, Gov. DeSantis “suspend[ed] under section 443.111(1)(b), Florida Statutes, the biweekly reporting requirement by claimants of ‘actively seeking work’ requirement, only to the extent necessary.”

Subsection 443.111(1)(b) says, in part:

As required under s. 443.091(1), each claimant must report at least biweekly to receive reemployment assistance benefits and to attest to the fact that she or he is able and available for work, has not refused suitable work, is seeking work and has met the requirements of s. 443.091(1)(d), and, if she or he has worked, to report earnings from that work. …

It is hard to see this statute as doing anything other than setting the conditions for disbursement of state money. If a claimant doesn’t satisfy the above requirements, the state doesn’t pay out money for unemployment benefits. While laudable, the governor appears to have exceeded his authority by issuing the executive order.

There is also a federal dimension here (h/t f.s. wisen). At the beginning of the executive order, the governor said “the U.S. Department of Labor has issued Unemployment Insurance Program Letter guidance No. 10-20 and No. 13-20 to provide discretion to states and emergency temporary modification and suspension authority to states in order to respond to the spread of COVID-19.” UIPL no. 13-20 does not appear to apply at all. As for UIPL no. 10-20, the Department of Labor wrote that “states have significant discretion to establish how individuals demonstrate that they are meeting these requirements” under federal law that “claimants be able to work, available for work, and actively seeking work.” But the department also wrote that “[t]hese federal requirements cannot be categorically waived or exempted for individuals affected by COVID-19.” Gov. DeSantis (more accurately, the legislature) can’t completely suspend the “actively seeking work” requirement.

Retroactive benefits

But Gov. DeSantis does, I think, have the authority to make payments retroactive to when a claimant would have applied for benefits if the system would have let her. Subsection 252.36(5)(a) grants the governor substantially more authority when it comes to agency rules. As far as I can tell, there is no statute governing the matter.

Instead, it’s an agency rule, Florida Administrative Code Rule 73B-11.013(8): “Effective date of claim. Unless otherwise provided by section 443.036(9), F.S., the effective date of an initial, additional or reopened claim will be the Sunday immediately preceding the filing date,” with some exceptions. (Subsection 443.036(9) doesn’t seem to set a different time.) Since the effective date of a claim is set by agency rule, the governor appears fully within his authority to set a different date. This arguably also applies to the waiver of the statutory one-week waiting requirement.

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Over many years, the state has gone out of its way to show its indifference to Floridians in need. We now see the results. In these chaotic days, people are going to repeat their calls for Gov. DeSantis to increase and extend unemployment benefits. They’ll also ask him to take other actions. Things need to be done, yes. But the governor has only so much authority to fix this mess. For the most part, he has recognized that. Gov. DeSantis must continue to resist these calls to act unlawfully, and to carefully evaluate the legality of other actions he is pressured to take. He should also take the time to reconsider the legality of what he has already done.