It has long been held that Florida administrative agencies are powerless to pass upon constitutional challenges to statutes. In two recent decisions, however, the Supreme Court of Florida has sanctioned an extension of this traditional rule which would prohibit Florida administrative agencies from passing upon constitutional challenges to their own rules and regulations. The author demonstrates that this extension and the theory upon which it is based are not supported by precedent or sound policy. The author then traces the development of the traditionalp rohibition in both the Florida and federal courts and concludes that although the courts have sometimes purported to derive this limitation from the constitution, they have in fact based their judgments on more pragmatic considerations. These considerations, the author finds, can be fully protected by a discriminating use of the exhaustion of remedies doctrine without the perverse effects that the traditional rule can, on occasion, produce.
Alan C. Swan,
Administrative Adjudication of Constitutional Questions: Confusion in Florida Law and a Dying Misconception in Federal Law,
33 U. Miami L. Rev.
Available at: http://repository.law.miami.edu/umlr/vol33/iss3/2