Limits of Mathews

The three-factor balance of Mathews v. Eldridge has become the standard method for deciding how much process an administrative or civil deprivation requires, and the Court has carried it into settings as different as a classroom and a combat zone.¹ A method that general still has boundaries. In some proceedings a different standard controls, in one setting no hearing is owed at all, and the method itself has drawn criticism from two opposite directions. This section marks each of those limits so that the reader knows where the three factors do their work and what is said against them.

The limits fall into two groups. The first concerns coverage: state criminal procedure is tested under a narrower fundamental-fairness inquiry, the adequacy of notice is measured by the Mullane standard, and a general law owes no hearing to the people it affects. The second concerns design, since critics say the balance is easy to manipulate and narrow in what it counts, because it values a procedure for the accuracy it adds and leaves out the value of letting the affected person take part, which is the second of the two purposes of a hearing described earlier in this chapter. The default comes first, and the next subsection, Mathews as the Default, begins with the setting that tests it hardest, the detention in Hamdi v. Rumsfeld.

Mathews as the Default

Outside criminal procedure, the Mathews factors remain the way a court decides what process is due once it has found that a protected interest is at stake.² The court weighs the private interest affected, the risk of an erroneous deprivation under the procedures used together with the probable value of added or substitute safeguards, and the government's interest, including the function involved and the fiscal and administrative burdens an added procedure would bring.³ In an ordinary benefits dispute the weighing runs on a modest scale, because the claimant must identify the specific added procedure sought and show that its absence is a real defect in the agency's present process.⁴ The court then asks whether the value of that added procedure justifies the cost of providing it.⁵

Hamdi v. Rumsfeld, introduced earlier in the discussion of physical liberty, supplies the most demanding test of the default, because the interest was liberty at its most basic and the opposing interest was national security. The plurality turned to the Mathews factors to resolve the tension between the autonomy the government says it needs to pursue a goal and the process a citizen says is due before he loses a constitutional right.⁶ Hamdi's stake was the "most elemental of liberty interests," freedom from physical detention by one's own government, and the allegations about his conduct and associations left that starting point unchanged.⁷ The government's interests were also weighty and sensitive, chiefly ensuring that those who have fought with the enemy do not return to battle, and the plurality observed that core strategic matters of warmaking belong with those best positioned and most politically accountable for them.⁸ Because the government's only evidence was an affidavit from an official who had never met Hamdi, which Hamdi was not allowed to challenge, the Court found the risk of erroneous deprivation under the government's approach "unacceptably high."⁹

The process the plurality prescribed fixed a core and left the rest adjustable. The core was notice of the factual basis for the classification and a fair opportunity to rebut the government's factual assertions before a neutral decisionmaker.¹⁰ Beyond that core, proceedings could be tailored to lessen the burden on the Executive during ongoing conflict: hearsay could be accepted as the most reliable evidence available, the government could receive a rebuttable presumption in favor of its evidence, the burden could shift to the detainee once the government put forth credible evidence, and a properly constituted military tribunal could serve as the neutral decisionmaker.¹¹

The three factors produce that shape for identifiable reasons. The first two fix the core: the interest is as heavy as a liberty interest gets, and an affidavit the detainee cannot test leaves the risk of a mistaken detention high, so some chance to contest the facts before a neutral decisionmaker is required. The third factor explains the tailoring, since the government's wartime function justifies relaxing evidentiary rules that would govern an ordinary hearing. The purpose of the hearing is modest, which is to give the errant tourist, embedded journalist, or local aid worker who was never a combatant a chance to prove the military wrong, and the hearing does not aim to punish anyone or to prove war crimes.¹² The plurality's reliance on a civil benefits case also shows that it was not requiring the higher protections of a criminal trial.¹³

The usual exam error is to assume that a weighty interest removes the balancing, when Hamdi shows that liberty at its most elemental still passes through the three factors, with the weight of the interest raising the core protections and the government's interest permitting tailoring. A second error is to drop the third factor in a national-security fact pattern, which leaves no explanation for why hearsay or a military tribunal may be tolerated.

Criminal Procedure

State criminal procedure is where the Court has most clearly refused to use the balance. In Medina v. California a defendant challenged a state law that placed on the defense the burden of proving incompetence to stand trial, and whether Mathews governed the challenge became a central issue.¹⁵ The majority rejected the contention that the law should be judged under the balancing test, and its reasoning reached past the competency rule to criminal cases in general.¹⁶ Because the prosecution was a state one, the claim arose under the Fourteenth Amendment, which restrains the states.¹⁷

Two ideas support that refusal, and they work at different levels. The first is textual. In criminal cases the specific guarantees of the Bill of Rights set the basic constitutional balance between liberty and order, so the Due Process Clause has only limited operation beyond incorporating them.¹⁸ The Bill of Rights speaks explicitly to many aspects of criminal procedure, and expanding those guarantees under the open-ended heading of due process invites undue interference with considered legislative judgments and with the balance the Constitution has already struck.¹⁹ A cost-benefit test would reopen that settled balance one procedure at a time, with each judge supplying the weights. The second idea is deference to the states, which Patterson v. New York expressed by holding that a state's allocation of the burden of proof is not subject to proscription under the Due Process Clause unless it offends some principle of justice "so rooted in the traditions and conscience of our people to be ranked as fundamental."²⁰

The standard that results is the "narrower inquiry" of traditional fundamental fairness, and it asks a different question from the one Mathews asks.²¹ Mathews asks what an added safeguard would buy in accuracy and what it would cost, while fundamental fairness asks about history and principle. The Medina majority accordingly looked at how the burden of proof on incompetency had been treated historically and at the logic of the rule against trying an incompetent defendant, a recognized principle of fundamental fairness, and it found that neither supported holding the state's allocation invalid.²² The dividing line is the type of proceeding. Hamdi lost physical freedom, an interest as weighty as any, and the plurality applied Mathews anyway, because the proceeding was a challenge to a detention classification and not a criminal prosecution.²³ Medina's claim arose inside a criminal prosecution, where the Bill of Rights has already spoken.

Hypothetical Illustration

A state law requires any criminal defendant who raises a particular defense to prove it by a preponderance of the evidence. The defendant argues that the burden raises the risk of a wrongful conviction and that shifting it would cost the state almost nothing. A court following Medina will not run the three factors. It will ask whether the allocation offends a principle of justice so rooted in tradition as to be fundamental, looking to historical practice and to the logic of the underlying rule. Change one fact: the same state's licensing board proposes to revoke a nurse's license after placing on the nurse the burden of disproving a charge of misconduct. That is an administrative deprivation, so the court weighs the nurse's interest in the livelihood, the risk of error that the allocation creates, and the board's burden under Mathews.

The usual exam error is to run the three factors whenever liberty is at stake, when a challenge to a state criminal procedure calls for the fundamental-fairness inquiry and for a look at whether an explicit Bill of Rights guarantee already covers the point. The opposite error is to say that criminal defendants have no due process protection beyond the Bill of Rights, since the fundamental-fairness inquiry is narrower than Mathews and still available.

Notice Under Mullane

A second boundary concerns notice. The sufficiency of notice is tested under its own standard from Mullane v. Central Hanover Bank & Trust Co., and a three-factor weighing does not decide it.²⁵ The standard requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.²⁶ Reasonableness has three components: the notice must reasonably convey the required information, it must come at a reasonable time for the parties to respond, and it must be sent by means that someone desirous of actually informing the absentee might reasonably adopt.²⁷

The two inquiries ask different questions. Mathews asks how much added procedure is worth its cost, which fits the shape of a hearing, where more or less process is a matter of degree. Mullane asks whether the government's effort to reach the person was reasonable in light of what the government knew, which is a question about the method the government chose. The standard carries its own practical limit, because due process does not require "heroic efforts" to deliver notice, and the assessment remains a case-by-case look at the totality of the circumstances, including any unusual fact the government knew.²⁸

The decided cases show the standard sorting methods. The Court has held insufficient notice of a condemnation proceeding by publication in a local newspaper and notice of an eviction action by posting on the tenant's door, while it has approved certified mail to a federal inmate who alleged that he never received the notice through the institution's mail system.²⁹ A party who objects that publication was inadequate therefore wins or loses on whether the means were reasonable given what the government knew. An argument that fuller notice would have cost little and improved accuracy answers a question the standard does not ask.

General Legislation

The last coverage limit takes a case out of procedural due process altogether. Due process does not require a legislature or other lawmaking body to provide special procedural protections, because the lawmaking process is treated as supplying all the process that is due.³¹ The reason, developed earlier in the discussion of individualized government action, is that individualized hearings are impractical when a rule reaches a whole class, and the people it affects have a political remedy through their representatives.³² A Mathews balance measures the process owed for a decision about a person, so it has nothing to weigh when the government has adopted a general rule.

Hamdi marks both sides of the line. No one was entitled to a hearing before Congress on whether to pass the law that the Court read as allowing the detention, yet Hamdi was entitled to a hearing before a neutral decisionmaker on whether he fell within it.³³ People adversely affected by a general law keep the ability to argue after enactment that it does not lawfully apply to them, and that argument is where individualized process arrives.³⁴ The line between rule and individual decision can still blur, since a general standard may require officials to evaluate each person's facts, and courts have declined to adopt a hard-and-fast test for sorting legislative from adjudicative action.³⁵ The useful question remains what the decision before the court actually decides: a policy binding a class, which owes no hearing, or a finding about one person's conduct or property, which does.

Critiques of the Balance

The balance has real strengths, which explains its staying power. It is flexible and functional, because it asks what improvements in accuracy and fairness a particular procedure would bring and what the procedure would cost the agency and the public.³⁷ It let courts recognize less weighty interests without ordering burdensome full evidentiary hearings, and it lets a court choose an intermediate procedure instead of facing an either-or choice between a trial-type hearing and the agency's own process.³⁸

The same flexibility is the source of the first criticism. The test is open-ended enough to give courts little guidance, and it puts judges in the position of making policy choices much as a legislator would.³⁹ The reason is visible in the structure of the test. Each factor calls for a weight, and weights depend on the values a judge brings, so reasonable judges can differ about how serious a deprivation is, how reliable the existing procedures are, and how heavy a burden is.⁴⁰ The results bear this out, since the test often produces five-to-four decisions and sometimes a three-way division among the Justices.⁴¹ The one factor with a potentially objective measure is the marginal benefit of added process, and it measures anything only when meaningful evidence exists and the claimant identifies the specific procedure sought and shows that its absence is a defect in the agency's current process.⁴²

A second criticism runs the other way, because it says the test counts too little. The test pays no heed to the dignitary interest in fair procedures and attends only to their utilitarian benefits, and critics add that it implies procedures are to be evaluated by whether they promote or detract from accuracy, without regard to whether the process will likely be perceived as fair.⁴³ That criticism connects to the two purposes of a hearing described earlier in this chapter. Marshall v. Jerrico named the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals, the first utilitarian and the second the intrinsic value of being heard by a neutral decisionmaker under fair procedures.⁴⁴ The second Mathews factor is built around the first purpose, since it measures what an added safeguard contributes to the reliability of decisions, and it has no place to record the value of the person's voice when that voice would not change the result.

Hypothetical Illustration

A state agency ends a participant's monthly benefit after reviewing the participant's records, and the participant asks for a short oral meeting with the decisionmaker before the cutoff. The agency shows that nearly every decision in the program rests on documents, that a meeting would almost never change a result, and that meetings for every participant would consume staff time the program needs for processing claims. Applied as written, the second and third Mathews factors favor the agency. A critic who values participation responds that the participant should be heard by a neutral decisionmaker whatever the effect on the outcome, and that the factors give that interest no weight of its own. The same facts yield different answers depending on whether a hearing is understood as a device for accurate decisions or also as a way of respecting the person affected.

Neither criticism has displaced the test. The utilitarian interest-balancing of Goss and Mathews remains the dominant approach to procedural due process, and the Court has continued to invoke the three factors in a wide variety of settings.⁴⁵ The two criticisms also pull in opposite directions, one saying that judges weigh too freely and the other that the test counts too little, so a fair account credits both without treating either as law. The usual exam errors are to apply Mathews to a criminal procedure challenge, a notice dispute, or a challenge to a general statute, and to write that Mathews has been abandoned or that it requires weighing dignity. A sound answer identifies the setting first, runs the three factors for an administrative or civil deprivation, and may note that the weights are contestable and that the test credits accuracy and cost.