Procedural due process rights (administrative state)
| Five Pillars of the Administrative State |
|---|
| Public control |
|
•Court cases |
| More pillars |
| •Agency control •Executive control • Judicial control •Legislative control |
| Click here for more coverage of the administrative state on Ballotpedia.
|
| Click here to access Ballotpedia's administrative state legislation tracker. |
Procedural due process, in the context of the administrative state, refers to the protections for citizens against arbitrary actions by administrative agencies that threaten to deprive them of life, liberty, or property.[1] Procedural due process specifically concerns the legal procedures administrative agencies are required to follow during rulemaking and adjudication proceedings. Substantive due process, on the other hand, involves the application of administrative law as it relates to individual life, liberty, or property interests.[2]
The U.S. Constitution and the Administrative Procedure Act (APA), among other sources, establish due process protections for citizens during administrative rulemaking and adjudication processes. These protections are designed to prevent administrative agency violations of individual rights.[1]
Debates about what is constitutionally required to satisfy procedural due process, as well as whether available procedural due process protections are sufficient, are among the main areas of disputation among scholars and practitioners of administrative law. Click here to learn more about the debate over due process and procedural rights protections in the context of the administrative state.
Foundations of procedural due process
The concept of due process in the United States can trace its foundations to the English Magna Carta of 1215. The Magna Carta limited the power of the king and government to deprive an individual of his rights without judgment by his peers according to the law of the land. The right to judicial proceedings according to the law of the land developed into the phrase "due process of law."[1]
U.S. Constitution
- See also: United States Constitution
The framers of the U.S. Constitution enshrined the due process of law in the due process clause of the Fifth Amendment:[1]
- "No person shall ... be deprived of life, liberty, or property, without due process of law."
The Fourteenth Amendment of the U.S. Constitution further prohibited state and local governments from depriving citizens of due process protections:[2]
- "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."[2]
Administrative Procedure Act
- See also: Administrative Procedure Act
The 1946 Administrative Procedure Act (APA) established uniform rulemaking procedures for federal agencies to propose and issue regulations, put forth procedures for issuing policy statements and licenses, and provided for judicial review of agency adjudications and other final decisions.
The APA features procedural due process protections for citizen interactions with the administrative state. These protections, which concern administrative rulemaking and adjudication activities, are described in detail below.
Procedural due process requirements of administrative agency rulemaking
- See also: Rulemaking
The APA established rulemaking processes that enable federal agencies to amend, repeal, or create administrative regulations. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period. When required by statute, certain agencies must follow the formal rulemaking process, which incorporates a trial-like hearing in place of the informal comment period.
The following procedural due process protections both guide and constrain agencies seeking to promulgate regulations:
Fair notice of regulatory activity
The due process of law requires administrative agencies to provide reasonable notice of regulations.[3] For this reason, an agency that seeks to embark on a regulatory course of action must first issue a proposed rule, also known as a notice of proposed rulemaking (NPRM). After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.
Public comment
- See also: Comment period
The rulemaking process aims to facilitate procedural due process by providing individuals with the opportunity to offer feedback on proposed regulations, either through public comment periods or formal hearings. After reviewing public feedback, the agency determines whether to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.
Procedural due process requirements of administrative agency adjudication
- See also: Adjudication
The APA defines adjudication as an "agency process for the formulation of an order." The agency adjudication process aims to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute. Adjudication can encompass broad swathes of agency determinations that take place outside of the rulemaking process.
Model procedural due process requirements in agency adjudication
Judge Henry Friendly of the United States Court of Appeals for the Second Circuit created a model list of procedural due process protections during agency adjudication in his 1975 law review article "Some Kind of Hearing." The list, according to administrative law scholar Peter Strauss, "remains highly influential, as to both content and relative priority."[4] Friendly's list features the following procedural due process protections, which apply equally to civil due process and criminal due process:[5]
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- The opportunity to present reasons for the proposed action not to be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know the opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based only on the evidence presented.
- Opportunity to be represented by counsel.
- A requirement that the tribunal prepare a record of the evidence presented.
- A requirement that the tribunal prepare written findings of fact and the reasons for its decision.
Applied procedural due process requirements in agency adjudication
No one-size-fits-all procedural due process blueprint exists for agencies to follow during adjudication proceedings. Instead, the requirements of procedural due process in agency adjudication vary according to the specific circumstances of the case at hand. Administrative law scholar O. John Rogge provided the following description of the diversity of procedural due process in his 1973 law review article "An Overview of Administrative Due Process":[6]
- "The requirements of due process will vary with different situations. If an individual's profession, livelihood, or liberty is at stake - if, for instance, a lawyer or other professional person is in danger of losing his license; or a public employee or tenured teacher is in danger of losing his job; or a person on parole is in danger of losing his liberty - due process will require charges, the right to counsel, a hearing, confrontation with one's accusers, the examination and crossexamination of witnesses, and a reasoned determination. On the other hand, if what is involved is a bar association's endorsement of a particular judicial candidate, the punishment of a prisoner for an infraction of prison regulations, termination of utility services, the payment of unemployment compensation, or the amount of a government subsidy, a simple hearing by a disinterested individual open to all parties may be sufficient."[6]
In order to determine if an agency's unique adjudication procedures satisfy due process in a particular case, the U.S. Supreme Court held in Mathews v. Eldridge (1976) that the fairness and reliability of existing procedures must be evaluated in addition to the added value of further procedural safeguards.[7]
See also
- Five pillars of the administrative state: Public control
- Taxonomy of arguments about due process and procedural rights in the context of the administrative state
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 Global Encyclopedia of Public Administration, Public Policy, and Governance, "Administrative and Judicial Due Process," accessed August 27, 2020
- ↑ 2.0 2.1 2.2 Justia, "Due Process of Law," accessed August 31, 2020
- ↑ Pacific Legal Foundation, "The Regulatory State’s Due Process Deficits," accessed August 31, 2020
- ↑ Legal Information Institute, "Due Process," accessed September 2, 2020
- ↑ University of Pennsylvania Law Review, "Some Kind of Hearing," 1975
- ↑ 6.0 6.1 Villanova Law Review, "An Overview of Administrative Due Process," 1973
- ↑ U.S. Legal, "Fundamental Fairness and Due Process," accessed August 31, 2020