3. Deference and Due Process

Abstract

Since procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance [is] relevant to the exercise of procedural discretion. --LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 567 (1965). Using modern due process analysis, the Agency, in the second step of its Chevron analysis, carefully weighed the risks and benefits of informal hearing procedures ... determining that these procedures would not violate the Due Process Clause of the Constitution. --Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two, 65 Fed. Reg. 30,886, 30,896 (May 15, 2000) (codified as amended in scattered parts of 40 C.F.R.), appeal dismissed, Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006). In the textbooks, procedural due process is a strictly judicial enterprise. (1) As the story runs, the Court in Mathews v. Eldridge (2) settled on a balancing test for determining what process is due, while in Cleveland Board of Education v. Loudermill (3) the Court finally decided that although the political branches may determine substantive entitlements, it is for courts to decide independently what process the Constitution requires. (4) The notion that procedural due process might be committed primarily to the discretion of the agencies themselves is almost entirely absent from the literature. The facts on the ground are very different. Thanks to converging strands of caselaw after Mathews--partly involving due process, partly involving post-Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. (5) cases on agency interpretation of procedural provisions, and partly involving the long shadow of Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc. (6) and its latest incarnation, Perez v. Mortgage Bankers Ass'n (7)--agencies themselves are now the primary frontline expositors and appliers of the Mathews test. Administrative constitutionalism (8) has already come to the Due Process Clause. (9) In the second epigraph, the Environmental Protection Agency, referring to itself in the third person, solemnly determined that it had correctly applied the Mathews factors to decide how much procedure to afford in a class of permit decisions. (10) (The epigraph also shows how closely the due process issues are entangled with questions of Chevron deference, when agencies are interpreting procedural provisions in organic statutes. I will disentangle all that later.) Similar examples are legion, arising from all sectors of the administrative state. The Nuclear Regulatory Commission applied Mathews to formulate rules of procedure for the licensing of plant operators. (11) The Bureau of Alcohol, Tobacco, and Firearms applied Mathews to decide whether it should use formal hearings in the denial or revocation of of label approval for alcohol. (12) The Treasury Department applied Mathews to determine how much procedure to afford when deciding whether to revoke certificates of surety upon complaint from agencies. (13) The Centers for Disease Control and Prevention even applied Mathews in a proposed rule to determine procedures for quarantine of travelers suspected of carrying a communicable disease, although the rule was never made final. (14) There are examples from the Department of Labor, (15) the immigration agencies, (16) the National Labor Relations Board, (17) the Federal Election Commission, (18) the Department of Housing and Urban Development, (19) and on and on--anywhere and everywhere. Descriptively, agencies are the first to apply the marginalist cost-benefit approach to due process. The courts, for their part, have no settled approach to such decisions, despite the confident outlines of procedural due process law found in the hornbooks. Some agency applications of Mathews are apparently never reviewed in court at all, leaving the agency as both the first and last body to apply the test. …