So now the Governor has taken action to reinstate FSSA by executive order (EO).I agree it is highly doubtful Governor Daniels has the authority to reinstate the FSSA through an executive order. I do fear legal challenges down the road. While the executive order might be a necessary stop gap measure, Governor Daniels needs to call the Indiana General Assembly back into a special summer session to fix the problem. This is simply too big of a mistake to leave to the the hope actions of the FSSA won't be challenged.
The EO states that it is clear that the repeal was a mistake, since the General Assembly also appropriated money to the agency and "enacted other legislation evidencing its intent that the agencies continue to carry out their mission and services." The Governor also asserts that he can create administrative agencies by executive order.
Can the Governor really do this, legally? It is doubtful. But will anyone effectively challenge it? It seems unlikely, and would be destructive.
I would also point out that the legislators should want to come back to session to fix the problem. If the General Assembly lets this stand without an interim legislative fix, that creates a precedent that the Governor can take sweeping legislative-type actions with the stroke of his executive pen. Do legislators want to defer that sort of sweeping power to the Governor? I would think not.