Concept
Protected Interests
Procedural due process
Protected Interests
The first question in a procedural due process problem is whether the government is taking something the clauses protect, and the text confines that inquiry to three things: life, liberty, and property.1 A person who is hurt by a government decision, but who cannot fit the loss into one of those three words, has no constitutional claim to a procedure, however much the decision matters to that person. The words are short and the Constitution does not define them, so the Court decides what counts, and its answer has changed over time. Before the 1960s the Court looked to the common law to identify liberty and property, and the common law treated government benefits as privileges rather than rights.2 Because the government could attach any condition to a privilege, including revocation without a hearing, a public employee could be fired, a welfare recipient cut off, or a student expelled with no process at all.3 Goldberg v. Kelly ended that distinction by holding that welfare benefits are property when a statute makes them an entitlement for qualified recipients, on the reasoning that new legal entitlements had grown up on which people rely just as they once relied on traditional property.4
The clauses take their interests from other sources. A statute, a contract, or a settled understanding defines what a person has, and the Due Process Clause then protects it. State law usually supplies the content: when a state program involves no substantive constitutional right, the state has a nearly free hand over eligibility standards, subject only to rational basis review, so state law answers what facts must be found for a person to keep a benefit.5 Federal law then takes over for the two remaining questions, which are whether the interest as state law defines it counts as liberty or property under the clause and what process is due before it can be taken.6 Since federal law decides the classification, a state's own label for a benefit does not settle whether the clause protects it. The test the Court uses to sort real entitlements from hopeful expectations in Board of Regents v. Roth asks for a legitimate claim of entitlement, which exists only where some legal limit on the government's discretion gives the claimant a basis for a hearing on whether the government has exceeded that limit.7
The two named interests that arise most often in these problems are taken up separately, because they are identified in different ways. Property turns on whether an independent source of law creates the entitlement, while liberty covers physical freedom and certain significant personal freedoms that the Court has recognized. The first subsection, Property and Entitlements, begins with the entitlement standard and the reason a discretionary benefit falls outside it.
Property and Entitlements
The modern definition of property for due process purposes is easiest to grasp as a replacement for an older one. Under the older approach, a government benefit was a privilege that the government could grant on any terms it chose and withdraw on any terms it chose, so the law of procedural fairness had nothing to say about its loss. In McAuliffe v. Mayor of New Bedford, a policeman's dismissal for political activities was held to be solely a matter of government discretion.8 The reasoning ran that a person with no right to receive a benefit has nothing to complain about when it is withdrawn, which let the government attach any condition to a benefit, including revocation without any hearing.9 That position became harder to hold once government had grown into the employer, regulator, and income provider for much of the population, since a person's livelihood could then depend on a public job or a benefit check that carried no procedural protection at all.10
Goldberg v. Kelly ended the privilege approach for welfare. Residents of New York City who received Aid to Families with Dependent Children or the state's Home Relief aid sued after officials terminated, or were about to terminate, their aid without prior notice or hearing.11 The Court observed that these benefits are a matter of statutory entitlement for persons qualified to receive them, and it held that the constitutional challenge could not be answered by arguing that public assistance is a privilege and not a right.12 The reasoning follows the way the program was written. The AFDC statute took the form of a conditional entitlement, so that a person with the specified characteristics was entitled to the specified benefits.13 Once the legislature has promised a benefit to everyone who meets stated criteria, a recipient's continued eligibility turns on facts that an official can find correctly or mistakenly, and a mistaken termination takes away something the law said the recipient was owed. The Court also placed welfare alongside unemployment compensation, tax exemptions, and public employment, observing that constitutional restraints apply as much to withdrawing public assistance as to those other benefits.14 After Goldberg, calling a benefit a privilege no longer settles whether due process applies, so the old right-privilege distinction is not today's test.15
Goldberg did not make every government benefit property, and the Court soon drew the boundary. In Board of Regents v. Roth the Court held that an individual must have a "legitimate claim of entitlement" before a due process claim for the taking of property can succeed.16 The test asks whether some legal limit on the government's discretion exists, because that limit gives a hearing its subject: the hearing decides whether the government has gone beyond the limit.17 Roth also changed what the Court examines. It replaced the earlier focus on how grievous the claimant's loss would be with an inquiry into the nature of the interest, and the weight of the loss became irrelevant to whether property exists.18 The interest must come from an independent source, meaning existing rules or understandings, such as a statute, a contract, or a mutual understanding, that secure a benefit and support a claim to it.19 Requiring an outside source does two jobs. It supplies the limit on official discretion that gives a hearing something to decide, and it leaves the definition of benefits with legislatures and contracting parties instead of with judges, who would otherwise decide which needs deserve constitutional status. A claimant's own need or hope, however sincere, is a unilateral expectation that limits no one's discretion.
Roth and its companion case Perry v. Sindermann show the entitlement test finding an interest and missing one on facts that differ in a single respect. In Roth, an untenured teacher was hired for a fixed one-year term and not rehired, and no contract provision, statute, or university policy secured re-employment or created any legitimate claim to it, so he could be let go without reasons or a hearing.20 The teacher in Perry likewise lacked express contractual rights to continued employment, but college officials had indicated through a faculty guide and official policies that a de facto tenure system existed, and the Court held that this gave him a sufficient claim of entitlement to require a hearing before the final decision not to renew.21 The written contract was equally silent in both cases, so the variable that moved the result was whether anything outside the contract limited the officials' discretion. Perry also shows that the source need not be formal, because mutually explicit understandings can support a claim of entitlement.22 The same logic sorts public employees generally: a person hired on terms clearly terminable at will has no property interest in the position, while assurances of continued employment, or of dismissal only for specified reasons, create one, whether they come from statute, formal contract terms, or the acts of a supervisor with authority to set the terms.23
The entitlement concept reaches well beyond welfare. In Mathews v. Eldridge, a worker had received Social Security disability benefits for nearly four years when the agency made a tentative determination that his disability had ended.24 The government did not dispute that an individual's interest in the continued receipt of these benefits is a statutorily created property interest protected by the Fifth Amendment, and the Court proceeded on that footing.25 The enabling act entitled disabled individuals to benefits for the duration of their disability, which is the same kind of conditional promise that made welfare an entitlement in Goldberg.26 Because the source was a federal statute, the clause that protected the interest was the Fifth Amendment rather than the Fourteenth. Finding a protected interest settles only that due process applies, since the amount of process owed is a separate question that this chapter takes up later.27
Entitlement describes an interest that the claimant presently enjoys. A person who has only applied for a benefit has not yet acquired anything, and procedural due process addresses the taking of an already acquired interest, so the applicant stands outside the protection.28 A hearing exists to test whether the government has exceeded the limit on its discretion in taking something away, and a refused applicant has lost nothing the law had already delivered.
The usual exam error is to ask how badly the claimant needs the benefit or how valuable it is. Weight matters later, when a court decides how much process is due, but the threshold question is whether an independent source of law gave the claimant a legitimate claim to something already enjoyed.
Liberty Interests
Liberty is the second protected interest, and its inquiry looks to what government is doing to a person's freedom: restraining the body or closing off a significant area of personal choice and action. The Court has never fixed the exact scope of the word, but it has described liberty as covering freedom from bodily restraint together with the right to contract, to engage in the common occupations of life, to acquire useful knowledge, to marry, to establish a home and raise children, and to worship according to conscience.30 The category has limits, because not every area of human activity counts as liberty, and a person can be hurt by government in some settings without any constitutional guarantee of process.31 The working generalization is that when government acts to deprive a person, or a small group, of freedom in some significant area of life, the Clauses require a procedure for testing the factual basis and legality of the action.32 The reason is functional. A decision about someone's body, family, or livelihood is where an arbitrary or mistaken official judgment does the most damage, and a hearing gives the person a chance to contest the facts on which that judgment rests. This section takes the interests in order of how clearly they qualify: physical freedom, the family, the practice of an occupation, and finally reputation, where the line is hardest to draw.
Physical freedom is the core. In Hamdi v. Rumsfeld an American-born man captured in Afghanistan was held as an enemy combatant in a military prison on United States soil, and the government's only evidence was an affidavit from an official who had never met him, which Hamdi was not allowed to challenge.33 The plurality called his interest in being free from physical detention by his own government the most elemental of liberty interests, and it held that the allegations about his conduct and associations left that starting point unchanged.34 Due process therefore demanded that a citizen held in the United States as an enemy combatant receive a meaningful opportunity to contest the factual basis for the detention before a neutral decisionmaker.35 The purpose of that hearing is modest. It protects the errant tourist, embedded journalist, or local aid worker who was never a combatant at all, by giving that person a chance to prove the military wrong.36 How much process a war setting permits is a separate question, taken up with the Mathews balancing in the closing section of this chapter. Confinement need not be punitive to engage liberty, as the treatment of children admitted to state mental institutions at a parent's or guardian's request in Parham v. J.R. shows: the child has an important liberty interest at stake, even though the Court required only an independent screening by a neutral fact finder and not an adversarial hearing.37
The family relationship is the second core area. In Stanley v. Illinois the state declared the children of an unmarried father wards of the state without any hearing on whether he was a fit parent.38 The Court held that the Due Process Clause protects a parent's substantial interest in the companionship, care, custody, and management of his children, and that the interest requires an individualized hearing on fitness before the children are removed.39 Illinois gave married parents, divorced parents, and unmarried mothers a hearing and proof of neglect before taking custody of their children, and the Court considered the argument that unmarried fathers are so seldom fit that the state need not undergo the administrative inconvenience of inquiring in any case.40 The Court answered that the Constitution recognizes higher values than speed and efficiency.41 A presumption of unfitness is cheaper than a hearing, but it forecloses the very issue on which the state's authority depends, because the state's interest in caring for the children is slight if their father turns out to be fit.42 Administrative convenience therefore cannot excuse a hearing when what is at stake is the dismemberment of a family. The Court reached the same result under the Equal Protection Clause, since every other Illinois parent received the hearing, but the due process holding is the one that identifies a parent's stake in his children as a protected interest.43
Liberty also covers the freedom to earn a living in a chosen field. When government ends a person's ability to practice a profession, it must provide a procedure to decide the person's fitness, so an agency that moves to revoke a physician's or lawyer's license owes a fair hearing.44 The same logic reaches other activities that government has taken under its control. Because the state decides who may drive on its highways, a person whose driver's license is revoked is entitled to a hearing on the basis for the revocation, although none is required when the revocation rests on prior judicial determinations of traffic violations and no factual issue remains to contest.45 That exception follows from the purpose of a hearing, which is to resolve contested facts, and a court proceeding has already resolved them. Public employment draws a finer line. Dismissal from one government position does not by itself take liberty, because losing a single form of public employment does not foreclose a person's freedom to work generally.46 The refusal of temporary admission to practice law in a state follows the same pattern: lawyers licensed elsewhere lost no liberty, because the refusal did not seriously damage their reputation or their ability to practice in the states where they were licensed.47 The loss becomes a liberty loss when the dismissal also forecloses a wide range of employment in both the public and private sectors.48
Reputation is where the cases draw the hardest line, and the line shows how a damaged name can matter without being liberty itself. In Paul v. Davis a sheriff distributed to local merchants a flyer listing active shoplifters, and the plaintiff, who appeared on it, argued that listing him without any hearing on whether he had shoplifted violated due process because it injured his reputation.49 The Court held that injury to reputation alone is not a deprivation of liberty, so official action that damages a person's standing in the community does not by itself require a hearing.50 The reason lies in what the opposite rule would do. Harm to reputation is the traditional business of state defamation law, and treating every official statement that embarrasses someone as a constitutional deprivation would make the Due Process Clause a federal supplement to the law of torts. The same worry about supplanting traditional tort law later led the Court to refuse to count negligence as a deprivation.51
Paul does not mean that reputation never matters. When the government's act damages reputation and also costs the person a significant legal status or opportunity, the loss is of something concrete, and the facts behind it can be tested at a hearing. A government employer that discharges an employee for announced reasons of incompetence, in terms tending to foreclose future employment, must give a hearing at which the employee can contest the charges and clear their name.52 Because the claim rests on the foreclosed opportunities, it can exist even when the employee could otherwise have been dismissed at will.53
The usual exam error is to treat any official accusation, listing, or announcement as a liberty deprivation, or the reverse error of overlooking a stigma that arrives together with a firing or a lost license. The question to ask is whether the injury falls on reputation alone or whether it is tied to a lost status or a foreclosed opportunity. Where the stake is physical confinement or a parent's custody of his children, the liberty interest is established at once, and the only issue left is how much process the setting requires.