Due Process: Limits on Government Regulation

1. Chapter 4 - Adjudications Due Process

2. Substantive Due Process • Substantive Due Process refers to the limits on what government can regulate • Federal - commerce clause, national security powers, foreign affairs, • State - police powers v. privacy (abortion) • Important in the early days of the court before the modern expansive reading of the commerce clause

3. Modern Substantive Due Process • Substantive Due Process is a limited concept in modern supreme court jurisprudence • But a controversial one • Even when there are constitutional bars, the court generally allows significant regulation • There may be a right to an abortion, but the state can regulate health and safety aspects of abortion clinics • There may be a right to own a gun, but the state can regulate carrying the gun - probably

4. Procedural Due Process • Procedural due process refers to the procedures by which government may affect the rights of an individuals in a specific situation • Procedural due process arises through adjudications and other proceeding that affect a small group of persons based on the specific factual determinations • There is no procedural due process right in legislation • What is your appeal for legislation?

5. History of Due Process • The constitution mostly did not apply to the states • The 14th amendment was eventually used to apply the constitution to the states • Many of the due process protections we take for granted stem from the Warren Court and cases decided in the 1950s and 1960s. • Criminal due process was developed earlier than administrative due process • The cutting edge of due process is transforming criminal due process into administrative, as with terrorist detainees

6. Takings Review • What is a traditional property "taking"? • What due process is involved? • What about compensation? • How is compensation measured? • Why is traditional takings jurisprudence much older than individual rights jurisprudence?

7. Regulatory Takings • What is a regulatory taking? • Why are these a hot topic in land use? • What are the consequences of forcing the state to pay for any diminished value caused by regulation? • Do you really think we can sort this out for coastal restoration? • Should the owner pay the state if regulation enhances property values? • Right of reclamation in LA

8. Accidental Deprivations • Assume the postman runs over your dog or the forest service accidentally burns down your home • Have you suffered a taking? • Are these due process deprivations? • If so, how could the government provide due process? • What if the government repeatedly forgets to give mental patients a hearing before committing them? • Is this different?

9. Rights v. Privileges - History • In 1940 a city fires a policeman because the police chief heard a rumor that the policeman had accepted free coffee and doughnuts from a shop on his beat. • Due process violation? • Did not need to provide due process for not granting or for terminating a government benefit • Government benefits were construed broadly - going to a state college • You could condition these with restrictions that would otherwise be impermissible • Bitter with the Sweet Doctrine

10. Goldberg v. Kelly, 397 U.S. 254 (1970) • The Last Gasp of Liberal United States Supreme Court Due Process Jurisprudence

11. Learning Objectives • Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness • Learn how increasing due process rights can have unintended consequences in a program with limited resources

12. The pre-1996 Welfare System • What is the general attitude toward people on Welfare? • How was this reflected in the administration of the welfare programs? • What was AFDC? • What were the unintended consequences of the welfare system? • How does this affect health care financing?

13. Stopped here

14. Supreme Court Context • Earl Warren • Appointed Chief Justice in 1953 - by which president? • What was Warren's background? • Served until 1969 • What was the jurisprudential shift on the United States Supreme Court in the 1950s and 1960s? • Who became Chief Justice after Earl Warren?

15. Facts of the Case • What state did this case arise in? • What program was providing benefits to the plaintiffs? • What was the economic status of plaintiffs? • How does this complicate their effectively asserting their legal rights? • Why did this result in the right to appointed counsel for indigent criminal defendants?

16. Statutory Entitlements • What makes a benefit an entitlement? • What is a matrix regulation?

17. Matrix Regulation

18. Pre-Goldberg: Post vs Pre-Deprivation Due Process • What was the administrative process that plaintiffs were contesting? • What do you think is the relationship between the agency personnel and the plaintiffs? • What were the problems with the informal system of reevaluating beneficiaries status? • What was the impact on plaintiffs of terminating benefits? • How does this further complicate post-deprivation hearing rights?

19. Why a Hearing? • Why couldn't plaintiff hire an attorney and file a written response to the termination letter? • What could she do at a hearing that she could not do in writing? • Why wasn't a post-termination hearing enough? • Why didn't the state want to give everyone a pre-termination hearing?

20. Goldberg Rights - I • 1) timely and adequate notice • 2) oral presentation of arguments • 3) oral presentation of evidence • 4) confronting adverse witnesses • 5) cross-examination of adverse witnesses

21. Goldberg Rights - II • 6) disclosure to the claimant of opposing evidence • 7) the right to retain an attorney (no appointed counsel) • 8) a determination on the record of the hearing • 9) record of reasons and evidence relied on; and • 10) an impartial decision maker

22. Administrative Costs of Goldberg • What does granting these hearings do to the cost (delay + personnel time) of removing someone from welfare? • What does it do to the balance of benefits costs to administration costs? • What does this do to the global cost of the benefits system?

23. Short-Term Impact of Goldberg • How does raising the administrative costs affect new claims for welfare? • What is the incentive for the welfare officers under the Goldberg ruling? • What expectation does it create for welfare recipients? • What long term problem did this contribute to?

24. Why Administrative Due Process is Not Liberal or Conservative • Conservatives • Want the little man (and the rich man) to be fairly treated by the government, i.e., to be able to resist regulation • Liberals • Want the individual to get lots of due process, and cannot exclude corporations • Both think the government losing against individuals is good

25. Fixing Welfare - The 1996 Act • Who pushed for welfare reform? • Who signed it? • What is the new name for AFDC? • TANF - Temporary assistance for Needy Families • What does the name change tell you about the change in philosophy? • How long do you get on the program? • How does this affect future Goldberg actions? • Will there be facts in dispute?

26. The Subsequent History of Goldberg • Never overruled • Superseded by Matthews • Ultimately limited to its specific facts • Unfortunately, many public health scholars did not notice then and have argued that all deprivations that affect individuals should have pre-deprivation process.