Restraining Agency Action: Administrative Discretion and Adoption of Statutes by Reference in \u3ci\u3eClemens v. Harvey\u3c/i\u3e, 247 Neb. 77, 525 N.W.2d 185 (1994)

This Note first presents the factual background of the caretaker relative medical assistance program in Nebraska and the factual background and procedural history of Clemens v. Harvey. Next, this Note analyzes the Nebraska Supreme Court’s holding that statutes adopted by reference are not altered when the original statutes are changed. It examines whether changes are needed in Nebraska’s approach to adopting legislation by reference and concludes that the clarity of the court’s approach eliminates a need for change. Then, this Note examines what the court’s refusal in Clemens to uphold a Department of Social Services regulation reveals of the law on: 1) whether the legislature can adopt by reference future acts of Congress; 2) how much discretion the legislature can delegate to administrative agencies; 3) the strict limits on administrative discretion in the policy-making area; and 4) the application of Nebraska’s Separation of Powers Doctrine. This Note concludes that despite the legislature’s passivity in protecting its power,” Clemens resulted in a significant victory for the legislature’s right to establish the state’s policy. Finally, this Note points out that Clemens v. Harvey illustrates the continuing possibility of abuses of agency discretion, especially when lower income Nebraskans are concerned