Due Process, Free Expression, and the Administrative State

Martin H. Redish* & Kristin McCall**

Procedural due process is, by its nature, a conditional protection. It does not guarantee that government will be unable to deprive an individual of her liberty, her property, or even her life. Instead, it does nothing more than impose the condition that government may deprive an individual of any or all of these valuable interests only if certain procedural requirements have first been satisfied. But it would not be an overstatement to assert that this constitutional protection serves as an important element of the foundation of a democratic system. As a matter of political theory, the implicit social contract between government and citizen in a liberal democratic state demands that the government treat its citizens with dignity and respect. If government seeks to take away a citizen’s liberty or property for violation of law, the social contract therefore demands that government provide the citizen with a full and fair opportunity to challenge the allegations of legal wrongdoing; anything less would be inconsistent with its contractual obligations toward its citizens. Of all the procedural requirements dictated by the demands of fair procedure, far and away the most important is the requirement of an independent, neutral adjudicator. Absent a truly neutral adjudicator, provision of any and all other procedural protections will be all but meaningless, since a biased or unduly influenced adjudicator is capable of ignoring all procedural protections in reaching a decision.

As important as procedural due process is in any case in which an individual’s life, liberty, or property is at stake, special procedural considerations come into play when the liberty in danger of revocation is the individual’s First Amendment right to speak. The First Amendment right of free expression is simultaneously foundational to the continued viability of American democracy and among the most fragile of all constitutional protections. Even when the right to communicate is vigorously protected, it takes courage to express one’s views, and that courage is often easily lost at the first sign of even the slightest governmental intimidation or threat. It is therefore not surprising that both jurists and commentators have recognized a special category of procedural protection, known as “First Amendment ‘due process.’”² This refers to the requirement that a would-be speaker be provided with procedures that satisfy the constitutional requirements of procedural due process before a claim of First Amendment protection for his expression may be rejected. The best way to view First Amendment due process is as a necessary but not sufficient condition. In other words, rejection of a claim of First Amendment protection absent the provision of the requisite procedures³ will automatically be deemed unconstitutional. However, the mere fact that such procedural protections have been provided will not automatically be deemed to satisfy the requirements of First Amendment protection. In addition, the determination of whether the expression in question is constitutionally protected must satisfy the substantive requirements of First Amendment jurisprudence.

Due process in general, and First Amendment due process in particular, face perhaps their most serious threat in the context of the modern administrative state. When viewed through the lens of procedural due process, the fundamental structure of the adjudicatory process takes on a very different— and much more ominous—tenor in the administrative context than in the traditional judicial setting. In the traditional judicial setting, adjudication is presided over by mostly independent judges who have no particular interest who wins or loses the case. In sharp contrast, in the administrative setting adjudication is conducted and resolved by employees—often high-ranking employees—of the very agency whose existence is justified by the need for regulation and which has decided to institute the particular regulatory proceeding in the first place. Such potential sources of threat to adjudicatory neutrality and independence would never be tolerated in the judicial system. Indeed, given applicable precedent, it seems quite clear that such aberrations from adjudicatory neutrality would be deemed unconstitutional as violations of the Fifth or Fourteenth Amendment’s guarantee of procedural due process. Yet to say these aberrations are commonplace in the administrative process would be an understatement. Indeed, they represent the fundamental characteristics of the modern administrative process. On the basis of a poorly reasoned Supreme Court decision feebly attempting to distinguish between the due process limits imposed on judicial and administrative adjudication, however, at least for the present time, the highly dubious constitutionality of the modern administrative process is largely ignored.⁴

Some would no doubt argue that it is too late in the day to bring about so dramatic a constitutional upheaval within the administrative state, and as a practical and descriptive matter, at least, this is likely true. Some would also likely respond that whatever threats to due process values that occur regularly in the administrative state are more than justified by the regulatory benefits to society that flow from its existence. This view we vehemently reject. There is no reason the administrative state cannot operate both effectively and fairly. Indeed, to the extent the goal of procedural due process is thought to be the utilitarian value of accurate decisionmaking,⁵ fair adjudication by a truly neutral adjudicator would seem essential to both effectiveness and fairness. Overregulation is no better for society than underregulation, and the danger of overregulation increases dramatically when the adjudicator begins the process with a built-in preference for the position taken by the very agency of which she is a part. We could avoid many of the due process dangers of selfinterested adjudication simply by substantially increasing both the independence and decision-making power of administrative law judges.

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© 2018 Martin H. Redish & Kristin McCall. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University Pritzker School of Law. The authors would like to thank Adam Alexander of the class of 2019 and Emily Burger of the class of 2020 at Northwestern University Pritzker School of Law for their valuable research assistance. An earlier version of this Article was supported by and delivered at a conference sponsored by the Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University. However, the views expressed are solely those of the authors.

**AB Yale University; JD Northwestern University.

2 See Henry P. Monaghan, First Amendment “Due Process,” 83 Harv. L. Rev. 518, 518 (1970).

3 What those requisite procedures actually are will be discussed in detail subsequently. See infra Part III.

4 See Withrow v. Larkin, 421 U.S. 35 (1975); see also infra text accompanying notes 91–117.

5 See, e.g., Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976).