Title: Chapter 4 - Adjudications
1Chapter 4 - Adjudications
2Substantive Due Process
- 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
3Modern Substantive Due Process
- Substantive Due Process is a limited concept in
modern supreme court jurisprudence - But a controversial one
- Even when there are constitutional bars, 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
4Procedural Due Process
- Procedural due process refers to the procedures
by which government may affect the rights of an
individuals in a specific situation - Procedural due process arises through
adjudications and other proceeding that affect 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?
5History of Due Process
- 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 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 cutting edge of due process is transforming
criminal due process into administrative, as with
terrorist detainees
6Takings Review
- 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?
7Regulatory Takings
- 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? - Do you really think we can sort this out for
coastal restoration? - Should the owner pay the state if regulation
enhances property values? - Right of reclamation in LA
8Accidental Deprivations
- 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? - What if the government repeatedly forgets to give
mental patients a hearing before committing them? - Is this different?
9Rights v. Privileges - History
- 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
10Goldberg v. Kelly, 397 U.S. 254 (1970)
- The Last Gasp of Liberal United States Supreme
Court Due Process Jurisprudence
11Learning Objectives
- 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
12The pre-1996 Welfare System
- What is the general attitude toward people on
Welfare? - How was this reflected in the administration of
the welfare programs? - What was AFDC?
- What were the unintended consequences of the
welfare system? - How does this affect health care financing?
13Stopped here
14Supreme Court Context
- Earl Warren
- Appointed Chief Justice in 1953 - by which
president? - What was Warren's background?
- Served until 1969
- What was the jurisprudential shift on the United
States Supreme Court in the 1950s and 1960s? - Who became Chief Justice after Earl Warren?
15Facts of the Case
- What state did this case arise in?
- What program was providing benefits to the
plaintiffs? - 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?
16Statutory Entitlements
- What makes a benefit an entitlement?
- What is a matrix regulation?
17Matrix Regulation
Test 1 Test 2 Claimant Status
Income less than 3000 for family of 2 Income less than 6000 for family of 4 x
Assets less than 2000 Head of household is disabled x
18Pre-Goldberg Post vs Pre-Deprivation Due Process
- 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?
19Why a Hearing?
- Why couldn't plaintiff hire an attorney and 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?
20Goldberg Rights - I
- 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
21Goldberg Rights - II
- 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
22Administrative Costs of Goldberg
- 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?
23Short-Term Impact of Goldberg
- How does raising the administrative costs affect
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?
24Why Administrative Due Process is Not Liberal or
Conservative
- 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
25Fixing Welfare - The 1996 Act
- 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? - How long do you get on the program?
- How does this affect future Goldberg actions?
- Will there be facts in dispute?
26The Subsequent History of Goldberg
- 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.