Florida Governor Ron DeSantis suspended Florida state attorney Andrew Warren earlier this week for refusing to enforce Florida’s abortion laws.
DeSantis said of the suspension, “Warren said that it doesn’t matter what the legislature does in the state of Florida. He is going to exercise a veto over that. He’s also instituted policies of ‘presumptive non-enforcement’…that is not consistent with the role of a prosecutor. You can exercise discretion in individual case, but that discretion has to be individualized and case specific.”
Warren recently indicated in an interview on CBS he thinks he was wrongly suspended, “(DeSantis) does not have the authority to suspend me … the people elected me to serve in this position and I am going to continue doing it.” Warren added, “The governor’s abortion ban is unconstitutional. So, I am the one upholding the law.”
It does not appear to be accurate that DeSantis cannot legally suspend Warren. As indicated by Eugene Volokh here, Article IV, Section 7 of the Florida Constitution states,
(a) By executive order stating the grounds …, the governor may suspend from office any state officer not subject to impeachment, … or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.
(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership….
Volokh also identifies Florida Supreme Court case State v. Allen (1937) as relevant precedent. The Court in that case found the Governor did have the authority to suspend an officer for perceived neglect of duty, per the State Constitution.
You can also read DeSantis’ Executive Order 22-176 suspending Warren. The order provides further reasoning for the suspension and legal justification.
Consideration of “Prosecutorial Discretion” as a Political Tactic
Such laws vary by state but it seems apparent that Warren is incorrect and that Governor DeSantis can legally suspend him for perceived neglect of duty. Should DeSantis do so in this case? How much of such willful neglect of duty should society tolerate? Can such acts also be seen positively through a civil disobedience lens?
Claims of “prosecutorial discretion” used as a means of protest against upholding laws unfavorable to certain factions in society occur often. This is a willful act of non-enforcement of laws, separate from practically necessary discretion due to limited resources or specific circumstances in individual cases. On the one hand, our Rule of Law system does not allow for this; it contradicts the very concept of “government of laws, and not of men,” that is, the official sanction of just law created via proper process must hold over the mere opinions of individuals with selfish desires. On the other hand, when there is a matter of controversy at the heart of the law in question that violates the conscience of individuals charged with certain official duties; when the constitutionality of the orders are in doubt, when the bounds of proper authority are in question, our traditions and principles back (and sometimes demand) the actions of these resistors on civil disobedience grounds as well.
The more ideologically divided a society is, the more of these types of battles it will see. Improper growth of government beyond official sanction and erosion of separation of powers and systemic checks and balances adds to their frequency. The size and scope varies too; from resting at the heart of de facto law creation like in the massive DACA “Dreamers” policy of Obama, to the local prosecutor’s office refusing to prosecute certain classes of criminals on “social justice” grounds.
It may help to put oneself in the role of an official charged with carrying out a duty found morally and/or constitutionally repugnant. May you be incorrect in your beliefs? Is there more to the situation than is currently in your understanding? Is there an alternative? Would upholding your duty violate your conscience or directly infringe upon the rights of others? These are questions every individual must answer.
Both extremes are undesirable; we cannot universalize the concept of a society devoid of order and disciplined adherence to official duty, and we cannot expect to thrive in a society where there is a universal lack of resistance to the emergence of officially sanctioned tyranny. So the “just following orders” or “dereliction of duty” prosecutorial discretion fight is another aspect of our overall ideological cultural war.
In my view, an official in such a situation can often be forgiven for sincerely believing they must disobey orders to uphold moral duties or comply with higher law, but said official should not be surprised when the authority issuing the orders disciplines or removes them from their role. In fact, such a reaction is necessary and can even be of practical use in the larger ideological fight; if an official duty is so morally wrong that complying with it becomes unthinkable, then one that suffered consequences for not complying would receive a certain amount respect and bonafides to advance the cause for remedying the injustice. Likewise, proponents of the law/order in question can claim their opponents lack of respect for it is further evidence of the danger of their position. This of course has no bearing on the merits of the argument of either side, and whether or not the offending official acted appropriately is reserved for judgment pending proper consideration for the matter in general.
Let’s avoid the inevitable “hypocrite” label and not play the “serves him right” game. What happened to Warren and the “pro-choice” side in this case can and will happen to conservatives and conservative causes in other cases (Second Amendment rights, COVID-style restrictions, etc). We don’t need to fall into the trap of celebrating the removal of people we oppose and defending the people with which we agree. Everyone must make the choice for themselves and be prepared to suffer potential consequences. We ought to just drill it down to the substance of the relevant debate so we can match it to our objective principles and make the appropriate judgment based on our valid laws and procedures, the severity of the perceived offense, and the prospects for meaningful change/restoration of rights depending on the case.