Abstract
In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion that procedural due process might be committed primarily to the discretion of the agencies themselves is almost entirely absent from the academic literature.The facts on the ground are very different. Thanks to converging strands of caselaw -- partly involving due process, partly involving judicial deference to agency interpretation of procedural provisions in statutes, and partly involving the long shadow of Vermont Yankee v. NRDC -- agencies themselves are now the primary front-line expositors and appliers of the cost-benefit balancing test of Mathews v. Eldridge. The courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions.I will defend this approach, and urge that it be made fully explicit. Rather than decide for themselves “what process is due,” courts should ask only whether the agency offered a rational justification for providing whatever process it did provide. Although the Mathews cost-benefit calculus would still supply the rule of decision, courts should merely review the application of that rule by agencies, and defer to reasonable agency decisions about the costs and benefits of procedural arrangements.
Highlights
The Mathews CalculusProcedural due process has a long history before Mathews was decided in 1976, and I will advert to that history where relevant
On the dimension of justification, I suggest that these converging developments in the caselaw after Mathews rest on a master principle, the one identified by Louis Jaffe in the first epigraph: for many of the same reasons that agencies are better positioned than courts to interpret the procedural provisions contained in their organic statutes, agencies are better positioned than courts to assess the marginal costs and benefits of additional increments of procedure for program beneficiaries and regulated actors, as Mathews requires
A critical question for administrative law involves the allocation of authority between agency and court to interpret procedural provisions in agencies’ organic statutes, and related provisions in the APA itself
Summary
Procedural due process has a long history before Mathews was decided in 1976, and I will advert to that history where relevant. United States.[41] Under the Mathews calculus, identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[42]. I aim to show that Mathews’ core idea, the calculus of procedure, can be respected while allocating front-line responsibility for implementing that calculus to agencies rather than courts, and that such an approach makes the most sense of post-Mathews developments in the surrounding legal terrain. Agency procedure, in doctrinal areas abutting due process, that support deference to agency procedural choices
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