Gwen and Marc cover the foundational question of procedural due process: Why does the Constitution require the government to give you notice and a hearing before taking something away?
They distinguish procedural due process (how the government acts) from substantive due process (whether it can act at all), explaining why these terms constantly trip people up. They explore why accuracy isn't the only value—legitimacy and dignity matter even when the government gets the right answer. Through examples like welfare terminations and driver's license suspensions, they examine who bears the cost when government makes mistakes and why the timing of process matters as much as the amount of process.
Gwen and Marc discuss Goldberg v. Kelly and Justice Brennan's recognition that cutting someone off from the means of survival while they wait for an appeal isn't just harsh—it undermines their ability to fight back. They also introduce the critical threshold question that controls everything: Does this action even count as a deprivation of life, liberty, or property? If not, the Constitution has nothing to say about it.
They Cover
- The difference between procedural and substantive due process
- Why legitimacy matters even when outcomes are correct
- How risk allocation determines who pays for government mistakes
- The timing problem: pre-deprivation versus post-deprivation hearings
- Goldberg v. Kelly and welfare benefit terminations
- Real-world examples: Social Security, driver's licenses, nursing licenses
- The threshold question: What counts as life, liberty, or property?
Featured Cases
- Goldberg v. Kelly (1970)
- Fuentes v. Shevin (1972)
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:52 this series. Mark, let's imagine that you are
00:00:52 --> 00:00:55 on Social Security disability and you get a letter
00:00:55 --> 00:00:58 from Social Security tomorrow saying that your
00:00:58 --> 00:01:00 disability benefits are being terminated in 30
00:01:00 --> 00:01:03 days. There's no explanation. There's no hearing.
00:01:03 --> 00:01:06 There's no instructions on what to do next. That's
00:01:06 --> 00:01:09 terrifying. I mean, those benefits might be the
00:01:09 --> 00:01:11 only thing between me and eviction. And there's
00:01:11 --> 00:01:12 nothing in the letter telling you what to do
00:01:12 --> 00:01:15 about it. Just decision made. I mean, can they
00:01:15 --> 00:01:18 actually do that? So that question, whether the
00:01:18 --> 00:01:20 government has to explain itself and whether
00:01:20 --> 00:01:22 it has to listen to you before it takes something
00:01:22 --> 00:01:25 away, that's what due process is all about. And
00:01:25 --> 00:01:26 today we're going to talk about why we care.
00:01:27 --> 00:01:30 We're not talking about the legal tests yet or
00:01:30 --> 00:01:32 the cases. Just why does any of this matter?
00:01:33 --> 00:01:35 Because it seems obvious that the government
00:01:35 --> 00:01:38 should have to explain itself when it either
00:01:38 --> 00:01:42 deprives a citizen of rights or otherwise interferes
00:01:42 --> 00:01:45 with something that they've become expected to
00:01:45 --> 00:01:48 have. Yeah, it seems obvious, but the Constitution
00:01:48 --> 00:01:50 doesn't say the government always has to give
00:01:50 --> 00:01:52 you process. It says the government can't deprive
00:01:52 --> 00:01:54 you of life, liberty, or property without due
00:01:54 --> 00:01:57 process of law. Actually, let's just read the
00:01:57 --> 00:01:59 Fifth Amendment's due process clause. It's short.
00:01:59 --> 00:02:01 No person shall be deprived of life, liberty,
00:02:02 --> 00:02:04 or property without due process of law. It is
00:02:04 --> 00:02:07 short. It is. And then the 14th Amendment applies
00:02:07 --> 00:02:10 the same thing to the states. Nor shall any state
00:02:10 --> 00:02:12 deprive any person of life, liberty, or property
00:02:12 --> 00:02:15 without due process of law. So first you have
00:02:15 --> 00:02:17 to figure out if something counts as life, liberty,
00:02:17 --> 00:02:19 or property. Then you have to figure out what
00:02:19 --> 00:02:22 due process means in that context. Before we
00:02:22 --> 00:02:24 go further, let's make sure we're using due process
00:02:24 --> 00:02:28 the same way lawyers actually use it. Because
00:02:28 --> 00:02:31 due process does double duty in the law. Yes.
00:02:31 --> 00:02:34 And it means that people are often talking past
00:02:34 --> 00:02:37 each other. On the one hand, there's procedural
00:02:37 --> 00:02:39 due process. That's about how the government
00:02:39 --> 00:02:42 acts, whether you have notice, a hearing, a chance
00:02:42 --> 00:02:44 to be heard, a neutral decision maker. Right.
00:02:44 --> 00:02:47 And procedural due process is asking whether
00:02:47 --> 00:02:49 the government followed fair procedures before
00:02:49 --> 00:02:51 it took something from you. And then there's
00:02:51 --> 00:02:53 substantive due process, which is a different
00:02:53 --> 00:02:55 question entirely. That's about whether the government
00:02:55 --> 00:02:58 can do the thing at all, regardless of how fair
00:02:58 --> 00:03:01 the procedures are. That's where cases like Griswold,
00:03:01 --> 00:03:05 Roe, Obergefell, that's where these cases come
00:03:05 --> 00:03:07 into play and shape the different rights people
00:03:07 --> 00:03:09 have. The issue isn't, did the state give you
00:03:09 --> 00:03:12 a hearing before banning contraception or same
00:03:12 --> 00:03:15 -sex marriage? It's, can the state ban those
00:03:15 --> 00:03:18 things at all? Yes, exactly. So when someone
00:03:18 --> 00:03:20 is challenging a ban on a medical procedure,
00:03:20 --> 00:03:23 that's substantive due process. Can the government
00:03:23 --> 00:03:26 do this? When a teacher challenges being fired
00:03:26 --> 00:03:28 without a hearing, that's procedural. Did the
00:03:28 --> 00:03:30 government do this fairly? Different question,
00:03:30 --> 00:03:33 different analysis. And substantive due process
00:03:33 --> 00:03:36 is controversial because critics say it lets
00:03:36 --> 00:03:38 judges recognize rights that aren't explicitly
00:03:38 --> 00:03:41 spelled out in the Constitution. Scalia called
00:03:41 --> 00:03:44 it an oxymoron. Though I'd note the response
00:03:44 --> 00:03:47 is that due process of law has never meant only
00:03:47 --> 00:03:50 procedural box checking. It's always had a substantive
00:03:50 --> 00:03:52 component about lawful government action. But
00:03:52 --> 00:03:54 for this season, where we're talking about administrative
00:03:54 --> 00:03:57 adjudication, we are firmly in procedural due
00:03:57 --> 00:04:00 process territory. Agencies generally have the
00:04:00 --> 00:04:03 power to act. The question we're asking is, what
00:04:03 --> 00:04:06 process do you get before they do? So when someone
00:04:06 --> 00:04:09 challenges an agency decision, social security,
00:04:09 --> 00:04:12 immigration, licensing, it's not, does the agency
00:04:12 --> 00:04:15 have authority to regulate here? It's, did you
00:04:15 --> 00:04:17 get noticed? Did you have a meaningful opportunity
00:04:17 --> 00:04:19 to be heard? Was there a neutral decision maker?
00:04:19 --> 00:04:22 Was there a reasoned explanation? These are procedural
00:04:22 --> 00:04:25 due process questions. And these are the questions
00:04:25 --> 00:04:27 we're going to keep coming back to all season.
00:04:27 --> 00:04:30 All right. Why do we care so much about procedural
00:04:30 --> 00:04:32 due process? The obvious answer is to get the
00:04:32 --> 00:04:35 right result. If the government has to explain
00:04:35 --> 00:04:37 itself and has to listen to you, it's more likely
00:04:37 --> 00:04:39 to make correct decisions. That makes sense.
00:04:39 --> 00:04:42 If I can show them evidence that I'm still disabled,
00:04:42 --> 00:04:47 they won't or shouldn't cut my benefits. Right.
00:04:47 --> 00:04:50 But accuracy isn't the only value we're concerned
00:04:50 --> 00:04:52 about. And it might not even be the primary one.
00:04:52 --> 00:04:55 OK. What else is there? There's legitimacy. Let's
00:04:55 --> 00:04:58 say the government is making some decision about
00:04:58 --> 00:05:00 you and it turns out to be correct. They got
00:05:00 --> 00:05:02 it right, but they never told you what was happening.
00:05:02 --> 00:05:04 They never ask for your input. They never explain
00:05:04 --> 00:05:06 their reasoning. How do you feel about that decision?
00:05:07 --> 00:05:10 It seems suspicious. It seems like the deck is
00:05:10 --> 00:05:12 stacked. I mean, even if it is the right call.
00:05:12 --> 00:05:14 Yeah, a correct decision reached through unfair
00:05:14 --> 00:05:17 procedures just doesn't really feel legitimate.
00:05:17 --> 00:05:19 It feels arbitrary. And there's a whole bunch
00:05:19 --> 00:05:22 of research on this, on procedural justice theory.
00:05:22 --> 00:05:24 It says people are much more willing to accept
00:05:24 --> 00:05:27 outcomes they don't like, even outcomes that
00:05:27 --> 00:05:29 hurt them, if they believe the process was fair.
00:05:29 --> 00:05:31 And that's kind of the entire basis of our court
00:05:31 --> 00:05:34 system. Okay, I buy that for high stakes situation,
00:05:34 --> 00:05:38 but is it always true? If the IRS correctly calculates
00:05:38 --> 00:05:41 that I owe an extra $200, do I really need an
00:05:41 --> 00:05:44 elaborate hearing to accept that? Great question.
00:05:44 --> 00:05:47 And no, you probably don't. The level of process
00:05:47 --> 00:05:50 should match the stakes. But even there, you
00:05:50 --> 00:05:51 should get notice of what they're claiming and
00:05:51 --> 00:05:54 a chance to dispute it. The point is that legitimacy
00:05:54 --> 00:05:57 isn't binary. It's a spectrum that tracks with
00:05:57 --> 00:06:00 the consequences. Okay. That sounds right, but
00:06:00 --> 00:06:03 I keep coming back to something. Courts handle
00:06:03 --> 00:06:06 due process all the time. Criminal defendants
00:06:06 --> 00:06:08 get Miranda rights, the right to counsel, trial
00:06:08 --> 00:06:12 by jury. What's different about agencies? The
00:06:12 --> 00:06:13 real concern is just the entire institutional
00:06:13 --> 00:06:16 structure. In courts, the entity that's deciding
00:06:16 --> 00:06:19 the case is separate from the entity that investigated
00:06:19 --> 00:06:22 and prosecuted. The judge didn't choose to bring
00:06:22 --> 00:06:24 the case, but in an agency enforcement action,
00:06:24 --> 00:06:27 it's the agency investigating. It's the agency
00:06:27 --> 00:06:29 deciding that there's a violation. It's the agency
00:06:29 --> 00:06:31 bringing the case. And the initial adjudication
00:06:31 --> 00:06:34 often happens inside the same institution. So
00:06:34 --> 00:06:37 not necessarily by the same person, but within
00:06:37 --> 00:06:40 the same organization. Right. Agencies can build
00:06:40 --> 00:06:43 internal separation in some instances where we
00:06:43 --> 00:06:45 have different staff and different offices. Sometimes
00:06:45 --> 00:06:48 ALJs with statutory protection. We talked about
00:06:48 --> 00:06:50 that early on. But it's still one institution
00:06:50 --> 00:06:53 exercising multiple functions. Due process doctrines
00:06:53 --> 00:06:56 exist to manage that structural overlap. The
00:06:56 --> 00:06:58 question isn't, can agencies adjudicate? They
00:06:58 --> 00:07:01 certainly can. The question is, what procedures
00:07:01 --> 00:07:05 are required to make it fair? So procedural due
00:07:05 --> 00:07:08 process in the agency context is about compensating
00:07:08 --> 00:07:12 for institutional power and asymmetry. Yes. The
00:07:12 --> 00:07:16 individual is faced with an entity that has generally
00:07:16 --> 00:07:19 superior expertise, superior resources, repeat
00:07:19 --> 00:07:22 player status, and policy commitments. That is
00:07:22 --> 00:07:24 an inherently unbalanced situation. The Supreme
00:07:24 --> 00:07:27 Court recognized this pretty early on. In 1970,
00:07:27 --> 00:07:30 in Goldberg v. Kelly, the court required hearings
00:07:30 --> 00:07:31 before welfare benefits could be terminated.
00:07:32 --> 00:07:34 Mark, read what Justice Brennan wrote about why.
00:07:34 --> 00:07:37 For qualified recipients, welfare provides the
00:07:37 --> 00:07:40 means to obtain essential food, clothing, housing,
00:07:40 --> 00:07:43 and medical care. Thus, the crucial factor in
00:07:43 --> 00:07:45 this context, a factor not present in the case
00:07:45 --> 00:07:48 of the blacklisted government contractor, the
00:07:48 --> 00:07:51 taxpayer denied a tax exemption, or virtually
00:07:51 --> 00:07:53 anyone else whose governmental... government
00:07:53 --> 00:07:56 entitlements are ended, is that termination of
00:07:56 --> 00:07:59 aid pending resolution of a controversy over
00:07:59 --> 00:08:02 eligibility may deprive an eligible recipient
00:08:02 --> 00:08:04 of the very means by which to live while he waits.
00:08:05 --> 00:08:07 That's Brandon saying you can't cut someone off
00:08:07 --> 00:08:09 from the means of survival and tell them to appeal
00:08:09 --> 00:08:12 later. The timing of the process matters enormously.
00:08:13 --> 00:08:15 Because by the time the error is corrected, the
00:08:15 --> 00:08:18 damage has already been done. Right. So you could
00:08:18 --> 00:08:19 reinstate somebody's benefits after an appeal.
00:08:19 --> 00:08:21 You could pay them what they were supposed to
00:08:21 --> 00:08:23 get. But... What happens during the six months
00:08:23 --> 00:08:26 they waited? They missed rent. There were medications
00:08:26 --> 00:08:28 they couldn't afford. They had debt that piled
00:08:28 --> 00:08:31 up. You can turn the benefits back on, but you
00:08:31 --> 00:08:33 can't necessarily undo all the consequences that
00:08:33 --> 00:08:35 occurred when they were off. Brennan also said
00:08:35 --> 00:08:39 since he lacks independent resources, his situation
00:08:39 --> 00:08:42 becomes immediately desperate. His need to concentrate
00:08:42 --> 00:08:45 upon finding the means for daily subsistence
00:08:45 --> 00:08:47 in turn adversely affects his ability to seek
00:08:47 --> 00:08:51 redress from the welfare bureaucracy. Cutting
00:08:51 --> 00:08:53 off his benefits doesn't just harm the person.
00:08:53 --> 00:08:56 It makes it harder for them to fight the decision.
00:08:56 --> 00:08:59 Exactly. That deprivation undermines the ability
00:08:59 --> 00:09:01 to challenge the deprivation. That's why the
00:09:01 --> 00:09:03 timing of process matters just as much as the
00:09:03 --> 00:09:06 amount of process. Here's another way to think
00:09:06 --> 00:09:08 about why due process matters. The government
00:09:08 --> 00:09:11 makes mistakes. That's inevitable. But the question
00:09:11 --> 00:09:13 is, who should pay for those mistakes? I think
00:09:13 --> 00:09:15 I see where you're going. I mean, if you require
00:09:15 --> 00:09:18 a hearing before the government acts, the government
00:09:18 --> 00:09:20 absorbs more of the cost of delay. If you let
00:09:20 --> 00:09:22 the government act first and hear you later,
00:09:22 --> 00:09:25 the individual absorbs the cost of being wrong.
00:09:25 --> 00:09:28 Yes. So due process is also fundamentally about
00:09:28 --> 00:09:31 this risk allocation. When the government acts
00:09:31 --> 00:09:33 first and listens later, the individual bears
00:09:33 --> 00:09:35 the cost of error. When the government has to
00:09:35 --> 00:09:38 listen first, it bears more of the cost. OK,
00:09:38 --> 00:09:40 but here's where I'd push back. You could describe
00:09:40 --> 00:09:43 every government regulation that way. The FDA
00:09:43 --> 00:09:45 delays the drug approval while it gathers more
00:09:45 --> 00:09:48 data. Patients who might have benefited bear
00:09:48 --> 00:09:51 that cost. OSHA requires an extensive hearing
00:09:51 --> 00:09:53 before imposing a safety standard. Workers in
00:09:53 --> 00:09:56 an unsafe factory bear that cost during the delay.
00:09:56 --> 00:09:58 More process isn't always better for the people
00:09:58 --> 00:10:01 we're trying to protect. That's also an important
00:10:01 --> 00:10:03 point, and one that the Supreme Court has recognized,
00:10:03 --> 00:10:06 that due process doesn't always mean more process.
00:10:06 --> 00:10:09 Sometimes speed is what protects people. If there's
00:10:09 --> 00:10:11 contaminated food on store shelves, the FDA can't
00:10:11 --> 00:10:13 wait for a full hearing before it issues a recall.
00:10:13 --> 00:10:16 And the Constitution accommodates that. This
00:10:16 --> 00:10:19 was addressed in Frontis v. Shevin, which is
00:10:19 --> 00:10:20 about whether the state should seize someone's
00:10:20 --> 00:10:23 property before giving them a hearing. And here,
00:10:23 --> 00:10:24 Justice Stewart explained the general principle.
00:10:25 --> 00:10:28 The constitutional right to be heard is a basic
00:10:28 --> 00:10:30 aspect of the duty of the government to follow
00:10:30 --> 00:10:33 a fair process of decision -making when it acts
00:10:33 --> 00:10:36 to deprive a person of his possessions. The purpose
00:10:36 --> 00:10:38 of this requirement is not only to ensure abstract
00:10:38 --> 00:10:42 fair play to the individual. Its purpose, more
00:10:42 --> 00:10:45 particularly, is to protect his use and possession
00:10:45 --> 00:10:48 of property from arbitrary encroachment. So to
00:10:48 --> 00:10:50 minimize substantively unfair mistaken deprivations.
00:10:50 --> 00:10:53 Notice the court isn't saying eliminate all mistakes.
00:10:53 --> 00:10:55 That's impossible. The goal is to minimize the
00:10:55 --> 00:10:58 mistakes, which means calibrating the process
00:10:58 --> 00:11:00 to the situation. So the Constitution doesn't
00:11:00 --> 00:11:03 require a hearing in every case before the government
00:11:03 --> 00:11:06 even acts. Right. The court has recognized exceptions
00:11:06 --> 00:11:08 for emergencies, for situations where a delay
00:11:08 --> 00:11:10 would cause harm, and for mass government programs
00:11:10 --> 00:11:13 where individual pre -deprivation hearings would
00:11:13 --> 00:11:16 be completely impractical. But those are exceptions
00:11:16 --> 00:11:18 to the general rule that you need a hearing before
00:11:18 --> 00:11:20 the government takes something from you. Okay.
00:11:20 --> 00:11:22 And I assume courts have developed some framework
00:11:22 --> 00:11:25 for figuring out when you need more process versus
00:11:25 --> 00:11:28 less process. They have. It is called the Matthews
00:11:28 --> 00:11:30 v. Eldridge Balancing Test, and it's coming in
00:11:30 --> 00:11:33 a couple episodes. But the core insight there
00:11:33 --> 00:11:35 is what we've been discussing. You're always
00:11:35 --> 00:11:37 balancing the risks of erroneous deprivation
00:11:37 --> 00:11:39 against the cost of additional procedures. When
00:11:39 --> 00:11:41 the stakes are high and mistakes are hard to
00:11:41 --> 00:11:44 fix, you need more process up front. When the
00:11:44 --> 00:11:45 stakes are lower or the government has a good
00:11:45 --> 00:11:47 reason to act quickly, like protecting people,
00:11:48 --> 00:11:50 less process may be constitutionally adequate.
00:11:50 --> 00:11:54 So when courts ask what processes do, they're
00:11:54 --> 00:11:56 not just counting procedures. They're asking
00:11:56 --> 00:11:58 how serious is the risk of error, how severe
00:11:58 --> 00:12:00 are the consequences if the government is wrong,
00:12:01 --> 00:12:03 and how much protection is needed before that
00:12:03 --> 00:12:05 harm occurs. Right. Those aren't formalities.
00:12:05 --> 00:12:07 That's how the law tries, imperfectly, but still
00:12:07 --> 00:12:10 tries, to decide who bears the cost when the
00:12:10 --> 00:12:12 government exercises power over an individual.
00:12:12 --> 00:12:14 It's like the administrative law learned hand
00:12:14 --> 00:12:16 formula. Okay, you keep saying the system is
00:12:16 --> 00:12:19 imperfect. Let me press you on that. If due process
00:12:19 --> 00:12:22 is so important, why can't we just require full
00:12:22 --> 00:12:24 process every time? If we did, government would
00:12:24 --> 00:12:27 completely grind to a halt. We've already talked
00:12:27 --> 00:12:29 about how Social Security processes millions
00:12:29 --> 00:12:32 of disability claims a year. If every single
00:12:32 --> 00:12:34 one required a full trial -type hearing before
00:12:34 --> 00:12:38 any decision, lawyers, cross -examination, a
00:12:38 --> 00:12:39 judge, people would wait years for an initial
00:12:39 --> 00:12:42 decision. Which might be worse than the current
00:12:42 --> 00:12:46 system, even with its flaws. Yes. There's a cost.
00:12:46 --> 00:12:48 Every procedural protection costs money. Resources
00:12:48 --> 00:12:50 that could actually go to providing benefits
00:12:50 --> 00:12:53 would instead be spent just doing these often
00:12:53 --> 00:12:55 unnecessary hearings. At some point, the process
00:12:55 --> 00:12:57 becomes so expensive that it's going to undermine
00:12:57 --> 00:13:00 the program itself. So there's the tension between
00:13:00 --> 00:13:02 treating each case as individually important
00:13:02 --> 00:13:05 and running a system that actually works at scale.
00:13:05 --> 00:13:07 Yes, that's always there. And different situations
00:13:07 --> 00:13:10 are going to call for different balances. Revoking
00:13:10 --> 00:13:12 someone's medical license probably deserves more
00:13:12 --> 00:13:15 process than denying a parking permit. Courts
00:13:15 --> 00:13:16 have developed a framework for weighing these
00:13:16 --> 00:13:19 considerations, and we'll get there. But the
00:13:19 --> 00:13:21 question is how much and when and in what form.
00:13:21 --> 00:13:23 Which is why there's so much litigation about
00:13:23 --> 00:13:26 it. Yes, decades. So here's one thing most people
00:13:26 --> 00:13:28 don't think about. If you have a driver's license
00:13:28 --> 00:13:31 and you get a DUI, the state can suspend your
00:13:31 --> 00:13:33 license. Everyone knows that. What most people
00:13:33 --> 00:13:36 don't know is that due process determines exactly
00:13:36 --> 00:13:39 how that works. Okay, so what do you mean? So
00:13:39 --> 00:13:41 in most states, there are two separate proceedings.
00:13:41 --> 00:13:44 There's a criminal case for the DUI charge and
00:13:44 --> 00:13:46 then an administrative proceeding by the DMV
00:13:46 --> 00:13:48 to suspend your license. That administrative
00:13:48 --> 00:13:51 suspension can happen much faster, sometimes
00:13:51 --> 00:13:53 within days of the arrest, and the procedures
00:13:53 --> 00:13:55 are completely different from what you'd get
00:13:55 --> 00:13:57 in a criminal court. So you might lose your license
00:13:57 --> 00:14:00 before you're ever convicted of anything. Yes,
00:14:00 --> 00:14:03 often yes. And the question of what process you're
00:14:03 --> 00:14:06 owed before that happens, how much notice, whether
00:14:06 --> 00:14:08 you get a hearing before or after the suspension,
00:14:08 --> 00:14:11 what kind of evidence the DMV needs, that's all
00:14:11 --> 00:14:13 due process law. Courts have litigated this extensively.
00:14:14 --> 00:14:16 Some states require a hearing before suspension.
00:14:16 --> 00:14:18 Others suspend first and give you a hearing afterwards.
00:14:18 --> 00:14:21 The Supreme Court has said both can be constitutional
00:14:21 --> 00:14:23 depending on the circumstances. So whether you
00:14:23 --> 00:14:26 can drive to work tomorrow might depend on which
00:14:26 --> 00:14:28 state you live in and what process they provide.
00:14:28 --> 00:14:31 Yes, exactly. And think about what losing a license
00:14:31 --> 00:14:33 means for someone in a rural area with no public
00:14:33 --> 00:14:36 transit. This isn't just an inconvenience. It
00:14:36 --> 00:14:38 can cost you your job. It can cost you your ability
00:14:38 --> 00:14:40 to get your kids to school, your access to medical
00:14:40 --> 00:14:43 care. The stakes of that administrative proceeding
00:14:43 --> 00:14:44 might actually be higher than the stakes of the
00:14:44 --> 00:14:47 criminal case. And most people don't realize
00:14:47 --> 00:14:49 there's a constitutional question embedded in
00:14:49 --> 00:14:52 the DMV letter telling them their license is
00:14:52 --> 00:14:55 suspended. Right. They see bureaucracy. They
00:14:55 --> 00:14:56 don't see the Fifth and Fourteenth Amendment
00:14:56 --> 00:14:58 working in the background or failing to work.
00:14:59 --> 00:15:01 OK, we've talked about why due process matters,
00:15:01 --> 00:15:04 accuracy, legitimacy, who bears the cost of mistakes.
00:15:05 --> 00:15:08 But does everyone get it? Any time the government
00:15:08 --> 00:15:10 does anything that affects you? No. And this
00:15:10 --> 00:15:12 might be the most uncomfortable part of all this.
00:15:12 --> 00:15:15 The Constitution doesn't guarantee fair procedures
00:15:15 --> 00:15:17 every time the government acts. It only kicks
00:15:17 --> 00:15:19 in when the government is depriving you of life,
00:15:19 --> 00:15:21 liberty or property. If what the government is
00:15:21 --> 00:15:23 doing doesn't fit those categories, the Constitution
00:15:23 --> 00:15:26 has nothing to say about it. OK, so figuring
00:15:26 --> 00:15:29 out what counts is the whole ballgame. It's certainly
00:15:29 --> 00:15:32 the initial gate. And next time, we're going
00:15:32 --> 00:15:34 to talk about how the court built it. Two professors
00:15:34 --> 00:15:36 get fired from state universities the same year.
00:15:37 --> 00:15:39 One gets constitutional protection. The other
00:15:39 --> 00:15:41 gets nothing. And the distinction between them
00:15:41 --> 00:15:43 still controls how every government benefit,
00:15:43 --> 00:15:45 every public job, and every professional license
00:15:45 --> 00:15:48 works today. So that does it for today's episode
00:15:48 --> 00:15:50 on administrative remedies. Thank you for joining
00:15:50 --> 00:15:53 us today. Please, if you enjoy this podcast and
00:15:53 --> 00:15:56 enjoy this episode, give us a like on Spotify.
00:15:57 --> 00:15:59 iTunes, or whatever platform you're listening
00:15:59 --> 00:16:01 on. And be sure to tune in next time where we'll
00:16:01 --> 00:16:03 continue to dive into the contours of administrative
00:16:03 --> 00:16:06 law, because remember, you can't fix what you
00:16:06 --> 00:16:07 don't understand.