Life in the Law's Shadow: Due Process in the World of Rule by Threat

Abstract

Federal agencies conduct most of their enforcement activities through threats. A federal agency might threaten to revoke a license, withdraw funding, change a privileged status, impose fines, or even imprison accused violators. Agencies may make threats through any number of methods, including draft policy statements, negative publicity, warning letters, or direct meetings. The penalties that agencies can wield would land most of us in bankruptcy or prison. So the threat’s target usually bends to the demand without a fight. The target of a threat from a federal agency usually has no immediate recourse to challenge the accusation. The Administrative Procedure Act limits judicial review to “final” agency action only. Most agency threats, however overbearing, do not unlock the courtroom. Nor do the threats and demands that make up most agency enforcement action fall under other legislative or administrative procedural protections. Constitutional due process demands more. This article argues that procedural due process rights should kick in when an agency threatens you, even if that threat is not sure to lead to legal consequences. Intimidation has become a fixture of administrative practice, exceeding the use of administrative or civil actions that would trigger procedural rights under the Administrative Procedure Act. The most fundamental protection against abusive government, the right to due process, must play a role in policing this most common of enforcement methods.