Administrative Law: Approaches to Delegation

As do most state courts, the Maine Supreme Judicial Court purports to require that legislative delegations of power to administrative agencies be accompanied by legislatively articulated "primary standards" sufficient to prohibit arbitrary exercise of administrative discretion. The requirement is rooted in the non-delegation doctrine, once the principal stumbling-block to the creation of an effective administrative arm of government. Originally a liberalization of the non-delegation rule, the primary standards test can become an unwarranted restraint on legislative discretion, particularly when invoked to nullify delegations necessarily broad in scope. Often, the very reason behind a legislature's choice of administrative means to effectuate its purposes will also provide a compelling justification for statutory silence regarding the limits of administrative discretion, for to attach precise standards to the delegation would be to frustrate its purpose. As a result, courts have increasingly abandoned the primary standards approach to delegation and have relied instead on procedural safeguards, such as judicial review, to keep the exercise of administrative powers within bounds.