Chapter 4 - Adjudications
Due Process
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Substantive Due Process
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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
 Might be important again, depending on the
election
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Modern Substantive Due Process
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Substantive Due Process is a limited concept in modern
supreme court jurisprudence
 But a controversial one
 The Affordable Care Act raised hard questions
Even when there are constitutional limits, 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
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Procedural Due Process
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Procedural due process refers to the procedures by
which government may affect the rights of an individual
in a specific situation
Procedural due process arises through adjudications and
other proceeding that affect individuals or 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?
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History of Due Process
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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 criminal 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 current cutting edge of due process is transforming
criminal due process into administrative, as with terrorist
detainees
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Takings Review
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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?
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Regulatory Takings
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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?
Should the owner pay the state if regulation enhances
property values?
 Zoning?
 Right of reclamation in LA?
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Accidental Deprivations
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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?
 (We cover these in the tort claims act section.)
What if the government repeatedly forgets to give mental
patients a hearing before committing them?
 Is this different?
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Rights v. Privileges - History
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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
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Goldberg v. Kelly, 397 U.S. 254 (1970)
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The Last Gasp of Liberal United States Supreme
Court Due Process Jurisprudence
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Learning Objectives
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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
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The pre-1996 Welfare System
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What was/is the general attitude toward people on
welfare?
What was AFDC?
What were the unintended consequences of the
welfare system?
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Supreme Court Context
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Warren Court
 What was the jurisprudential shift on the United
States Supreme Court in the 1950s and 1960s?
What has been the trend of the court since the
Warren Court?
 How does this compare with the court's
history?
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Facts of the Case
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What state did this case arise in?
AFDC is a federal program: What was the role of
the state?
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?
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Statutory Entitlements
What makes a benefit an entitlement?
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Matrix Regulation
Test 1
Test 2
Claimant Status
Income less than
$3000 for family
of 2
Assets less than
$2000
Income less than x
$6000 for family
of 4
Head of
x
household is
disabled
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Pre-Goldberg: Post vs Pre-Deprivation
Due Process
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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?
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Why Does Plaintiff Want a Pre-termination
Hearing?
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Do you think there were real bias issues in
the process being challenged?
Why couldn't plaintiff 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?
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Goldberg Rights - I
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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
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Goldberg Rights - II
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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
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Administrative Costs of Goldberg
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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?
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Short-Term Impact of Goldberg
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How does raising the administrative costs affect
processing 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?
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Fixing Welfare - The 1996 Act
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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?
 What do you get and for how long?
How does this affect future Goldberg actions?
 Will there be facts in dispute?
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The Subsequent History of Goldberg
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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.
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Why Administrative Due Process is Not
Liberal or Conservative
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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 in individual cases.
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Goldberg's Children
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Goldberg created the notion of an entitlement, i.e.,
a continued right to a government benefit as long
as you met the triggering criteria for the benefit.
The next cases explored when this applied to
employment, outside of civil service protections
and public employee union contracts, which are
more expansive than the constitutional minimum.
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