Protected Interests: Property

In Class 11, we learned that courts determine whether procedural due process is required by considering whether the agency action is one that triggers procedural due process (Is it individualized decision-making or legislative decision-making? Londoner and Bi-Metallic). While in your reading for last class we did not discuss in depth the remaining questions in our inquiry in to whether due process is required. Thus, we continue down the path of adjudication by considering, in addition to whether the agency action triggers procedural due process:

1. Whether the person’s property, liberty (and in very rare cases, life) is at stake due to the agency’s action;
2. Whether the due process clause obligates the agency to use more procedures than it used when it took the action that deprived the person of their interest;
3. If more due process is needed, the court will have to determine how much due process is required to satisfy the constitutional due process requirement.

In Class 12, we will focus on the question of whether a protected interest is at stake.

Procedural due process is only required to protect life, liberty, and property interests, according to the Constitution. If the government is not depriving anyone of their rights to life, liberty, or property, the government does not have to provide procedural due process according to the 5th and 14th Amendments.

Before the Supreme Court’s Goldberg v. Kelly decision, “life, liberty, and property” did not apply to “privileges” government provided like government employment and government welfare payments. Goldberg expanded the Due Process Clause to include government services, erasing the line between “rights” and “privileges.” The following cases, Goldberg and Roth, demonstrate how the courts treat government services and promises as “rights” afforded procedural due process.

Property Interests

The first two cases we read, Goldberg and Roth, demonstrate how the court assesses whether there is a property interest at stake that triggers procedural due process requirements.