The DeSantis Administration is relying on an emergency rule to designate certain groups as domestic terrorists, circumventing public input required under the law the administration drafted.
The emergency rule will be used for the first time on Sept. 29 as the governor and Cabinet move to bless the designations of groups recommended by FDLE and long-targeted as terrorists by DeSantis.
The designations come two months after the administration’s initial attempt to implement the new state law was challenged in court and halted.
To make its case, the DeSantis administration is pointing to a White House report issued four months ago that was criticized for being vague and incomplete.
This is not the first time the DeSantis administration has come under fire for tapping emergency powers to accomplish his agenda. The governor has previously suspended rulemaking connected to immigration and emergency management and repeatedly renewed emergency orders as he rounded up migrants and erected detention facilities.
“There’d have to be a pretty darn good reason for it,” said state Pensacola Republican Rep. Alex Andrade, who voted for the domestic terrorism legislation but has been critical in the past of state agencies’ reliance on emergency rulemaking to carry out policies which should be implemented through regular non-emergency rulemaking. “Generally, emergency rulemaking shouldn’t be option number one.”
The emergency rule, unanimously approved earlier this month by the governor and Cabinet in a roughly two-minute telephone conference and now in effect, armed the Florida Department of Law Enforcement (FDLE) with the power to recommend American groups anywhere in the United States for designation as domestic terrorists, opening the door to an effective shut down of the targeted organization, along with criminal charges for anyone deemed aiding such groups — all without any due process requirements.
Those earmarked for designation include the Council on American Islamic Relations (CAIR) and its Florida affiliate, CAIR-FL, both non-profit civil rights advocacy groups, and antifa, a loosely defined group of left-leaning individuals opposed to fascism with no formal organization, structure, or leadership, as the Florida Trident reported earlier this year.
By turning to the emergency rulemaking process, the DeSantis administration not only bypassed the law drafted by the governor’s office, which required FDLE to adopt nonemergency rules to govern the designation process, but sidelined the public’s involvement and transparency required under the nonemergency rule process.
Passed during this year’s regular session, the legislation, HB1471, was heralded by supporters as a new tool to enable, for the first time, state statutory authority to not only mirror federal foreign terrorist organization designations, but to designate domestic groups as terrorist organizations as well. It also provides for automatic student university expulsions and felony charges for those knowingly providing material support or resources to the designated groups. The measure took effect July 1.
Critics slammed the legislation as a threat to free speech and the First Amendment.
The law gives unprecedented legal power to Florida’s executive branch, authorizing the head of FDLE to recommend designation of a group or organization as “domestic terrorists” after determining it engaged in “terrorist activity,” defined in the bill analysis as a violent act or dangerous to human life, or a violation against “users of computers, computer systems, computer networks, and electronic devices,” and an ongoing threat to the security of Florida or the United States.
How that designation recommendation is made is largely cloaked in secrecy if state officials decide releasing such details would be a threat to national or state security. And challenging a designation requires a court proceeding in Tallahassee.
But before any designation process could begin, HB1471 requires FDLE to adopt rules outlining how designations would be carried out. A separate requirement in Florida law governing the rulemaking process mandates that a notice of the development of those rules be published by FDLE within 30 days of the law taking effect.
Neither statutory requirement was followed.
Rules? What rules?
To mark the legislation’s becoming law, Gov. Ron DeSantis, along with FDLE head Mark Glass, held a press conference July 1 in Tampa, announcing that the law enforcement agency’s recommendations for terrorist designations included CAIR, CAIR-FL, and antifa.
Ratification of those designations by the Florida Cabinet was expected quickly, DeSantis said.
“The way it works, this needs to be ratified by the Cabinet,” he said. “We don’t have a regularly scheduled meeting in July…but I think we’ll be able to jump on a call and do an emergency meeting to be able to ratify this and then off to the races.”
Neither DeSantis nor Glass mentioned that no notice of the required rules had been initiated.
The first public admission that the DeSantis administration was attempting to move forward without the required rules came in a federal lawsuit filed immediately after the announcement that CAIR and CAIR-FL were marked for terrorist designations.
“Counsel for Defendants informed counsel for Plaintiffs that the Florida Department of Law Enforcement intends to promulgate regulations to implement designations…Counsel for Defendants further represented that any designations made…will be made pursuant to those regulations and, thus, no designation will be made before the regulations are finalized. However, counsel for Defendants are currently unable to represent when the regulations will be finalized,” wrote the governor’s Washington, D.C. law firm, Cooper & Kirk in mid-July in a joint status report with attorneys from the Southern Poverty Law Center (SPLC) and the American Civil Liberties Union (ACLU).
Both the SPLC and ACLU represented CAIR and CAIR-FL, and had filed suit to block the designations.
The belated admission prompted the SPLC to accuse the state not only of violating constitutional rights, but by moving forward before regulations were in effect, of a “calculated and cruel” designation plan that “suits their political agenda.”
As a result of the failure to comply with the rules requirement under the new law, the designation process was challenged in court and halted by the DeSantis administration. But rather than follow the requirements outlined in statute, FDLE did an about face, turning to emergency rulemaking to move forward with the designations.
On Sept. 11, while the country marked the 25th anniversary of the attacks on the World Trade Center and the Pentagon, DeSantis and the three-member Cabinet readied for a previously unscheduled telephone gathering. Two days earlier, the governor’s office published notice of the hastily scheduled meeting, as well as notice of a proposed FDLE emergency rule, “11RER26-8 Procedures” which outlined how domestic targets would be designated.
There would be no public input, and the rule would take effect upon approval by the governor and Cabinet. According to FDLE, the imminent threat required by statute justifying the emergency powers was a White House counterterrorism strategy paper published in May.
DeSantis began the meeting drawing a comparison between the day’s significance and noting “We have enemies in this world, and the people that perpetrated that attack had a very clear political and ideological agenda, and that threat has not been extinguished.”
“We’ve obviously been keyed on this issue for some time,” he said, recommending that the emergency rule to designate terrorist organizations be ratified by the Cabinet.
The three-member Cabinet — Attorney General James Uthmeier, Chief Financial Officer Blaise Ingoglia, and Agriculture Commissioner Wilton Simpson — did not object. Later in the day, Uthmeier posed on X that “we now have the process to name these groups, cut off taxpayer support, and hold those who bankroll them accountable.”
We use your personal data for interest-based advertising, as outlined in our Privacy Notice.
Emergency Powers
While the DeSantis administration now maintains that the driving force behind resorting to emergency rulemaking authority was an imminent threat, his remarks July 1 suggest an intent to target certain organizations all along.
Under Florida law, any emergency rule issued by a state agency must contain key requirements, including a statement of “specific facts and reasons for finding an immediate danger to the public health, safety or welfare, and its reasons for concluding that the procedure used is fair under the circumstances.”
No “specific facts and reasons” were included in FDLE’s statement. Instead, the law enforcement agency summarized generalized assertions made by the White House in its strategy paper:
“As the White House explained earlier this year, the United States currently is under threat from narcoterrorists and transnational gangs; legacy terrorists; and violent left-wing extremists, including anarchists and anti-fascists,” the agency wrote.
“The timeline for committing terrorist acts has become increasingly short, providing less opportunity for law enforcement or public safety officials to intervene and dismantle terror threats…and therefore necessitates immediate protective measures…Accordingly the Florida Department of Law Enforcement must adopt an emergency rule,” FDLE asserted.
The White House strategy paper, drafted by national security advisor Sebastian Gorka, a controversial figure who was ousted from the White House in Trump’s first term but returned in his second, came under fire immediately after its release in early May.
The paper cited military strikes against fishing boats, the ouster of the “illegitimate leader of Venezuela” in league with Iran, among other accomplishments in interrupting drug imports and terrorist activity by “jihadists.” It also lists what it said were President Trump’s achievements in Europe, Asia, the Middle East and Africa, and faulted the abuse and weaponization of the U.S. Intelligence Community for the “politically motivated killings of Christians and conservatives committed by violent left-wing extremists, including the assassination of Charlie Kirk.”
A large crowd fills a downtown street during a protest, holding signs and waving American and other national flags amid tall city buildings.
The strategy paper noted that “national [counterterrorism] activities will also prioritize the rapid identification and neutralization of violent secular political groups whose ideology is anti-American, radically pro-transgender, and anarchist,” and asserted that national assets will be increased to “combat the most dangerous terrorist threat to America: non-state acquisition and use of weapons of mass destruction.”
Mississippi Rep. Bennie G. Thompson, a Democrat and Ranking Member of the Committee on Homeland Security, slammed the report as “no strategy at all…There are zero strategic objectives, lines of effort, or agency assignments.”
Thompson also faulted the Trump administration’s failure to identify “right wing extremism” which federal law enforcement data have shown “presented the most persistent and deadly threats to Americans for decades,” along with “terrorism threats stemming from Trump’s unnecessary war with Iran.”
In Florida, oversight of the rulemaking process rests primarily with the Joint Administrative Rules Committee (JAPC), which is the “legislative check on the legislatively created authority,” according to state law.
The committee consists of 14 state lawmakers tasked with ensuring that “all applicable procedures are followed, and that no illegal rules are imposed on the people of Florida.”
A review of FDLE’s emergency rule by JAPC is still pending. While most emergency rules are submitted by agencies for review within seven days, no information had yet arrived from FDLE, said JAPC staff director Ken Plante on Tuesday.
An emergency rule, which generally expires in 90 days but can be renewed under specific conditions, is also subject to judicial review, and courts have previously upheld challenges to emergency actions for failing to meet the legal standards.
In a 2018 Florida Bar article on emergency rulemaking, Jowanna Nicole Oates, a chief attorney with JAPC wrote that there was a growing reliance by state agencies on emergency rules, and, along with that, an increase in litigation resulting from challenges to the emergency actions.
She cautioned that a statement of “specific facts and reasons” accompanying any emergency rule issuance “must be factually explicit and persuasive concerning the existence of a genuine emergency,” as well as “why it can’t be addressed through the nonemergency rulemaking process.”
“A great deal of litigation in the emergency rule context is centered on whether emergency action is actually required,” wrote Oates. “An agency cannot create an emergency due to its own inaction.”
Michelle DeMarco is an award-winning investigative reporter who returned to journalism after more than two decades in public service. Contact her at demarco@flcga.org. The Florida Trident is an investigative news outlet focusing on government accountability and transparency across Florida. The Trident was created and first published in 2022 by non-profit investigative, a non-profit organization that facilitates local investigative reporting across the state.
