Introduction

Procedural Due Process

Introduction

The Fifth Amendment commands that no person shall "be deprived of life, liberty, or property, without due process of law."¹ The Fourteenth Amendment repeats the guarantee in nearly the same words and aims it at the states: "nor shall any State deprive any person of life, liberty, or property, without due process of law."² The two clauses differ in whom they bind, since the Fifth restrains the federal government and the Fourteenth restrains the states. A challenge to a federal agency's procedures therefore arises under the Fifth Amendment, as it did in Mathews v. Eldridge, which tested a federal agency's procedures for terminating benefits.³ Neither clause forbids deprivations of life, liberty, or property outright. Each permits them on the condition that the person receives due process, so the guarantee regulates the manner in which government takes.⁴

The word "process" in the clauses marks the line between two bodies of doctrine. Substantive due process is addressed to what government can do at all, so it asks whether a given law or action is permissible whatever procedure accompanies it. Procedural due process inquires into the way government acts and the enforcement mechanisms it uses.⁵ It sets a floor of fundamental fairness for how government must proceed when it takes something from a particular person.⁶ The two can come apart. A state university might adopt a rule letting deans expel any student they believe guilty of cheating, a rule that would easily survive rational basis review, yet leaving its application to administrators with no hearing before a neutral decisionmaker may violate procedural due process even though no substantive constitutional right is involved.⁷ Fair procedures earn constitutional protection because they serve two ends: they reduce mistaken deprivations by testing the government's version of the facts, and they give the affected person a voice in the decision.⁸ A procedural claim therefore attacks the manner of decision, and the government remains free to reach the same result after it provides a fair process.

Every procedural due process problem is worked through two questions asked in order. The first is whether a life, liberty, or property interest is at stake, and the second is what procedures must be afforded to assure fair treatment.⁹ The first question is a gatekeeper. More than a mere expectation or some other unprotected interest must be at stake before the clauses require any process at all, so a claimant who cannot identify a protected interest has no constitutional right to any procedure, however unfair the decision may seem.¹⁰ The second question arises only after the first is answered yes, and it stays open even then, because showing that an interest is protected does not by itself say what process is due.¹¹ This chapter follows the same order. It begins with the interests the clauses protect, turns to the kinds of government action that count as depriving someone of them, then sets out the baseline of notice and a hearing, and finally examines how courts decide how much more process a particular setting demands. The next section takes up the gatekeeper question, starting with what counts as property.