Gwen and Marc cover the cases that define what counts as "property" for due process purposes—and why the answer to that question determines whether the Constitution shows up at all.
They contrast two nurses: Linda, who has her license suspended without a hearing, and Kevin, who is denied a license application with no explanation. Same state, same nursing board, same situation—but Linda gets constitutional protection while Kevin gets nothing. The difference? Linda has a property interest; Kevin has only a "unilateral expectation."
Gwen and Marc work through Board of Regents v. Roth, which establishes that property interests aren't created by the Constitution—they're created by state law, statutes, regulations, and contracts. They examine Perry v. Sindermann, where the Supreme Court said agencies can't make promises with one hand and disclaim them with the other. They discuss Cleveland Board of Education v. Loudermill, which holds that once a state creates an entitlement, it can't strip away the procedural protections that come with it.
They also tackle Town of Castle Rock v. Gonzales, the tragic case where three children were murdered after police failed to enforce a restraining order—and the Supreme Court said there was no property interest in police enforcement, even when the statute said "shall arrest." Gwen and Marc explore the uncomfortable reality that due process protects you when the government takes something you have, but doesn't require the government to act for you.
Through examples ranging from hair braiding licenses to civil service employment, they show how program design isn't neutral—it's constitutional architecture.
They Cover
- Board of Regents v. Roth: "legitimate claim of entitlement" versus "unilateral expectation"
- Perry v. Sindermann: how mutually explicit understandings create property interests
- Cleveland Board of Education v. Loudermill: why states can't define away procedural protections
- Town of Castle Rock v. Gonzales: the narrow gate for entitlements and the limits of mandatory language
- Liberty interests and the stigma-plus requirement
- How agencies design programs to create or avoid constitutional protections
- Real-world examples: professional licensing, government employment, welfare benefits
Featured Cases
- Board of Regents v. Roth (1972)
- Perry v. Sindermann (1972)
- Cleveland Board of Education v. Loudermill (1985)
- Town of Castle Rock v. Gonzales (2005)
Key Concepts
- Legitimate claim of entitlement: The standard from Roth that determines whether you have a property interest
- Constitutional architecture: How agencies design programs to trigger or avoid due process requirements
- Stigma-plus test: Reputation damage alone isn't enough—you need tangible harm
- Shall versus may: Why mandatory statutory language doesn't always create entitlements
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 --> 00:00:49 this series. All right, Mark, today we are going
00:00:49 --> 00:00:52 to start by contrasting two situations. The first
00:00:52 --> 00:00:55 is a nurse named Linda. She's been an RN for
00:00:55 --> 00:00:57 22 years. She works the overnight shift at a
00:00:57 --> 00:01:00 hospital in Ohio. And one morning she gets a
00:01:00 --> 00:01:01 letter from the state nursing board saying her
00:01:01 --> 00:01:04 license is being suspended pending investigation.
00:01:04 --> 00:01:07 There are allegations of medication errors. That's
00:01:07 --> 00:01:09 serious, but investigations happen all the time.
00:01:10 --> 00:01:12 The letter says the suspension is effective immediately.
00:01:12 --> 00:01:14 She can't work as a nurse starting tomorrow.
00:01:14 --> 00:01:17 No hearing. No chance to explain. Just you're
00:01:17 --> 00:01:21 done until we say otherwise. Well, that's her
00:01:21 --> 00:01:24 entire livelihood, 22 years of her career, that
00:01:24 --> 00:01:26 could be gone with just one letter. So here's
00:01:26 --> 00:01:29 what makes this a due process question. Linda
00:01:29 --> 00:01:32 has a nursing license. The state gave it to her.
00:01:32 --> 00:01:34 She met every requirement. She passed every exam.
00:01:34 --> 00:01:37 She maintained every continuing education credit.
00:01:37 --> 00:01:39 Can the state just take that away with a letter?
00:01:40 --> 00:01:42 It feels like they shouldn't be able to. All
00:01:42 --> 00:01:45 right, so let's change the facts slightly. So
00:01:45 --> 00:01:47 same state, same nursing board, but now instead
00:01:47 --> 00:01:50 of Linda, it's Kevin. Kevin has just graduated
00:01:50 --> 00:01:52 from nursing school. He applied for his license.
00:01:52 --> 00:01:54 He met all the qualifications, and the board
00:01:54 --> 00:01:57 denied his application. No explanation, no hearing.
00:01:57 --> 00:02:00 Okay, that also feels wrong. It might be wrong
00:02:00 --> 00:02:03 as a policy matter, but constitutionally, Linda
00:02:03 --> 00:02:05 and Kevin are in completely different positions.
00:02:06 --> 00:02:07 Linda has a property interest in her license.
00:02:08 --> 00:02:10 The state gave it to her. She relied on it. She
00:02:10 --> 00:02:13 built her life around it. Kevin is applying for
00:02:13 --> 00:02:15 something he doesn't have yet. So Linda gets
00:02:15 --> 00:02:18 constitutional protection while Kevin doesn't.
00:02:18 --> 00:02:21 Yes. That is a threshold question for due process.
00:02:21 --> 00:02:23 Not whether the government's actions seem unfair,
00:02:23 --> 00:02:26 but whether you have a legally protected interest
00:02:26 --> 00:02:29 that the government is taking away. And today
00:02:29 --> 00:02:30 we're going to walk through how courts figured
00:02:30 --> 00:02:33 out where that line is, because it's not intuitive
00:02:33 --> 00:02:35 and it has enormous consequences for how every
00:02:35 --> 00:02:38 government program operates. The same agency
00:02:38 --> 00:02:40 making the same kind of decision, but the Constitution
00:02:40 --> 00:02:43 only shows up for one of them. Yes. And the reason
00:02:43 --> 00:02:46 why goes back to a pair of cases in 1972 about
00:02:46 --> 00:02:48 two college professors, one who had protection
00:02:48 --> 00:02:51 and one who didn't. And that distinction between
00:02:51 --> 00:02:53 them still controls everything. Let's start with
00:02:53 --> 00:02:55 the text. We read the due process clause last
00:02:55 --> 00:02:58 episode, but it's worth hearing again because
00:02:58 --> 00:03:00 every case to date turns on it. No person shall
00:03:00 --> 00:03:03 be deprived of life, liberty, or property without
00:03:03 --> 00:03:06 due process of law. 16 words, but they do very
00:03:06 --> 00:03:09 specific work. Notice what it doesn't say. It
00:03:09 --> 00:03:11 doesn't say the government must always provide
00:03:11 --> 00:03:14 a hearing. It conditions procedure on deprivation.
00:03:14 --> 00:03:16 No deprivation, no constitutional requirement.
00:03:17 --> 00:03:20 So defining those terms, life, liberty, or property
00:03:20 --> 00:03:24 is everything. Yeah, especially property. Most
00:03:24 --> 00:03:27 administrative disputes aren't about cars and
00:03:27 --> 00:03:30 houses. Right. They're about jobs, licenses,
00:03:30 --> 00:03:33 benefits, permits. Those aren't things you own
00:03:33 --> 00:03:35 in the traditional sense. And they're probably
00:03:35 --> 00:03:37 not things you covered in your first year property
00:03:37 --> 00:03:39 course. Things like Linda's nursing license.
00:03:39 --> 00:03:41 And there's a threshold before we even get to
00:03:41 --> 00:03:45 property or liberty, state action. Yeah. So a
00:03:45 --> 00:03:47 private employer fires you. You might have a
00:03:47 --> 00:03:50 claim under contract law, but there's no constitutional
00:03:50 --> 00:03:53 claim there. But a government employee that fires
00:03:53 --> 00:03:56 you, that's when the analysis now starts. Right.
00:03:56 --> 00:03:58 That's if and only if there's a protected interest
00:03:58 --> 00:04:00 to begin with. So let's talk about those cases.
00:04:01 --> 00:04:03 And these are another one of those really nicely
00:04:03 --> 00:04:06 matched sets of cases where the facts are so
00:04:06 --> 00:04:09 similar. First one, Board of Regents v. Roth.
00:04:09 --> 00:04:11 This is the case that defines property for due
00:04:11 --> 00:04:14 process purposes. David Roth, an assistant professor
00:04:14 --> 00:04:17 at Wisconsin State University Oshkosh, had one
00:04:17 --> 00:04:20 -year contract, no tenure, and the university
00:04:20 --> 00:04:23 decided not to renew. He gave no reason and offered
00:04:23 --> 00:04:26 no hearings. So here, Roth argued that he had
00:04:26 --> 00:04:28 a property interest in continued employment.
00:04:29 --> 00:04:32 Which the court rejected. I'll read the key passage,
00:04:32 --> 00:04:33 and this is the language that controls everything.
00:04:34 --> 00:04:37 To have a property interest in a benefit, a person
00:04:37 --> 00:04:40 clearly must have more than an abstract need
00:04:40 --> 00:04:43 or desire for it. He must have more than a unilateral
00:04:43 --> 00:04:46 expectation of it. He must instead have a legitimate
00:04:46 --> 00:04:49 claim of entitlement to it. A legitimate claim
00:04:49 --> 00:04:52 of entitlement. That phrase becomes the hinge
00:04:52 --> 00:04:56 for everything that follows. Not need, not expectation,
00:04:56 --> 00:04:59 entitlement. And his contract was explicitly
00:04:59 --> 00:05:02 for one year. No promise of renewal. Yeah, so
00:05:02 --> 00:05:04 this brings us to the doctrinal move that matters
00:05:04 --> 00:05:06 most for administrative law. Read this part.
00:05:07 --> 00:05:09 Property interests, of course, are not created
00:05:09 --> 00:05:12 by the Constitution. Rather, they are created
00:05:12 --> 00:05:14 and their dimensions are defined by existing
00:05:14 --> 00:05:17 rules or understandings that stem from an independent
00:05:17 --> 00:05:19 source such as state law. So the Constitution
00:05:19 --> 00:05:22 doesn't create property interests. State law
00:05:22 --> 00:05:25 does. statutes do, regulations do, and contracts
00:05:25 --> 00:05:28 do. Right. The Constitution just says if you
00:05:28 --> 00:05:30 have a property interest from one of those sources,
00:05:30 --> 00:05:33 then due process applies. Which means agencies
00:05:33 --> 00:05:35 are often the ones deciding whether constitutional
00:05:35 --> 00:05:39 protections attach at all. Yes, exactly. Roth
00:05:39 --> 00:05:42 isn't just about defining property. It's a structural
00:05:42 --> 00:05:44 rule about program design. Think about Linda
00:05:44 --> 00:05:47 and Kevin. Linda's nursing license was issued
00:05:47 --> 00:05:49 under a state statute. She met the requirements.
00:05:49 --> 00:05:51 The state granted it. That's a property interest,
00:05:51 --> 00:05:54 a legitimate claim of entitlement. Kevin applied,
00:05:54 --> 00:05:57 but he hasn't received anything yet. So under
00:05:57 --> 00:05:59 Roth, he has a unilateral expectation, not an
00:05:59 --> 00:06:02 entitlement. Agencies can design around constitutional
00:06:02 --> 00:06:05 requirements. If you don't want constitutional
00:06:05 --> 00:06:08 procedure, don't create an entitlement. Right.
00:06:08 --> 00:06:09 You can do that through fixed -term contracts
00:06:09 --> 00:06:13 with discretionary renewals. You can condition
00:06:13 --> 00:06:16 benefits on things. Those aren't just HR choices.
00:06:16 --> 00:06:19 They're constitutional architecture. Okay, but
00:06:19 --> 00:06:22 Sinderman limits how far that design around strategy
00:06:22 --> 00:06:25 can go. Yeah, so this was decided the same day
00:06:25 --> 00:06:27 as Roth. Here we have Robert Sinderman. He's
00:06:27 --> 00:06:30 been in the Texas state college system for 10
00:06:30 --> 00:06:32 years under a series of one -year contracts.
00:06:32 --> 00:06:35 But here, the college's faculty guide said something
00:06:35 --> 00:06:37 interesting. It suggested that teachers with
00:06:37 --> 00:06:40 seven or more years of satisfactory service had
00:06:40 --> 00:06:43 permanent tenure. There's no formal tenure policy,
00:06:43 --> 00:06:46 but there's a faculty guide making promises.
00:06:46 --> 00:06:48 And the college tried to have it both ways. That's
00:06:48 --> 00:06:51 not a contract. It's just a guide. Which is essentially
00:06:51 --> 00:06:53 the government saying, yes, we told you this
00:06:53 --> 00:06:56 was permanent, but we didn't really mean it.
00:06:56 --> 00:06:58 Right. And the court says you don't get to do
00:06:58 --> 00:07:01 that. Read this part. A person's interest in
00:07:01 --> 00:07:03 a benefit that is a property interest for due
00:07:03 --> 00:07:05 process purposes, if there are such rules or
00:07:05 --> 00:07:08 mutually explicit understandings that support
00:07:08 --> 00:07:12 his claim of entitlement. Mutually explicit understandings.
00:07:12 --> 00:07:14 So this is substance over form, and this matters
00:07:14 --> 00:07:17 enormously for how the administrative state operates.
00:07:17 --> 00:07:19 Because agencies don't just communicate through
00:07:19 --> 00:07:22 statutes and regulations. They have guidance
00:07:22 --> 00:07:24 documents and manuals and training materials
00:07:24 --> 00:07:27 and standard operating procedures. If those documents
00:07:27 --> 00:07:29 create expectations that look like entitlements,
00:07:29 --> 00:07:31 Sinderman says the Constitution might hold the
00:07:31 --> 00:07:34 agencies to them. The government has to align
00:07:34 --> 00:07:36 its actual practices with its legal posture.
00:07:36 --> 00:07:39 You can't make promises with one hand and disclaim
00:07:39 --> 00:07:42 them with the other. Does that mean every agency
00:07:42 --> 00:07:44 has to be careful about what it puts in its training
00:07:44 --> 00:07:47 materials, internal guidance, even informal policy
00:07:47 --> 00:07:50 memos? Yes. And this is one reason you can see
00:07:50 --> 00:07:53 agencies working so hard on the language in their
00:07:53 --> 00:07:57 manuals and making these determinations so carefully.
00:07:57 --> 00:08:00 So the agency may provide instead of the applicant
00:08:00 --> 00:08:03 will receive or is subject to available funding
00:08:03 --> 00:08:05 instead of guaranteed upon eligibility. Those
00:08:05 --> 00:08:08 aren't just bureaucratic hedging. After sentiment,
00:08:08 --> 00:08:10 they're constitutional risk management. Roth
00:08:10 --> 00:08:13 and Sinderman together, formal structure matters.
00:08:13 --> 00:08:16 But you can't hide behind informality either.
00:08:16 --> 00:08:18 The question is whether there's a real entitlement.
00:08:18 --> 00:08:22 However, it's created. Right. That's the framework.
00:08:22 --> 00:08:24 All right. Once you have a property interest,
00:08:25 --> 00:08:27 the next question is procedure. And Loudermill
00:08:27 --> 00:08:29 draws a critical line. All right. So this is
00:08:29 --> 00:08:32 Cleveland Board of Education v. Loudermill. This
00:08:32 --> 00:08:35 one was decided in 1985. We have James Loudermill.
00:08:35 --> 00:08:38 He's a civil servant under Ohio law, which means
00:08:38 --> 00:08:41 he can only be terminated for cause. A very clear
00:08:41 --> 00:08:44 property interest under Roth, Ohio law created
00:08:44 --> 00:08:46 that entitlement. So it turned out that he lied
00:08:46 --> 00:08:48 on his job application about a felony conviction,
00:08:48 --> 00:08:51 and the board fired him without a hearing. And
00:08:51 --> 00:08:54 the board's argument was elegant. Ohio law creates
00:08:54 --> 00:08:57 the property interest. Ohio law also defines
00:08:57 --> 00:09:00 what procedures come with it. Ohio didn't require
00:09:00 --> 00:09:02 a pre -termination hearing. Their argument was
00:09:02 --> 00:09:04 take the bitter with the sweet, but the court
00:09:04 --> 00:09:06 rejected it. Read what the court had to say.
00:09:07 --> 00:09:09 Justice White wrote, the categories of substance
00:09:09 --> 00:09:12 and procedure are distinct. Were the rule otherwise,
00:09:13 --> 00:09:15 the clause would be reduced to a mere tautology.
00:09:15 --> 00:09:17 Property cannot be defined by the procedures
00:09:17 --> 00:09:20 provided for its deprivation any more than can
00:09:20 --> 00:09:23 life or liberty. So they're saying that state
00:09:23 --> 00:09:26 law creates the entitlement. But once that entitlement
00:09:26 --> 00:09:28 exists, the Constitution sets the procedural
00:09:28 --> 00:09:30 floor. The state can't keep an entitlement on
00:09:30 --> 00:09:32 the books and strip away the protections that
00:09:32 --> 00:09:34 come with it. It can eliminate the entitlement
00:09:34 --> 00:09:37 entirely, and Congress did exactly that with
00:09:37 --> 00:09:40 welfare in 1996. But as long as the program says
00:09:40 --> 00:09:42 you're entitled to this if you qualify, Loudermill
00:09:42 --> 00:09:44 says the state owes you process before it takes
00:09:44 --> 00:09:48 it away. So agencies face a real choice. Create
00:09:48 --> 00:09:50 entitlements and accept the procedural costs
00:09:50 --> 00:09:53 that follow, or avoid creating entitlements and
00:09:53 --> 00:09:56 retain flexibility. Either way, they're making
00:09:56 --> 00:09:58 a policy decision with constitutional consequences.
00:09:58 --> 00:10:01 And it explains why so many benefit programs
00:10:01 --> 00:10:03 are designed the way they are. Think about it.
00:10:03 --> 00:10:05 Some programs say you shall receive benefits
00:10:05 --> 00:10:08 if you meet these criteria. Others say the agency
00:10:08 --> 00:10:10 may, in its discretion, provide benefits. That
00:10:10 --> 00:10:12 word choice isn't just a drafting preference.
00:10:13 --> 00:10:15 After Loudermilk, it's the difference between
00:10:15 --> 00:10:17 a program that triggers constitutional procedures
00:10:17 --> 00:10:20 and one that doesn't. A program design isn't
00:10:20 --> 00:10:23 neutral. It's constitutional architecture. Exactly.
00:10:24 --> 00:10:26 So in Loudermilk, Ohio created four -cause protection
00:10:26 --> 00:10:29 for civil servants. That created the property
00:10:29 --> 00:10:31 interest. After Loudermill, the state had to
00:10:31 --> 00:10:33 provide process before taking it away, regardless
00:10:33 --> 00:10:36 of what that state's own procedures said. The
00:10:36 --> 00:10:38 Constitution trumps the state's attempts to limit
00:10:38 --> 00:10:41 process. OK. Liberty interests operate differently,
00:10:41 --> 00:10:43 though, from property interests. Let's talk about
00:10:43 --> 00:10:46 that. So here, physical freedom is the core.
00:10:46 --> 00:10:48 The government can't imprison you without due
00:10:48 --> 00:10:51 process. But reputation matters, too, sometimes.
00:10:52 --> 00:10:54 Roth actually raised both claims. He argued his
00:10:54 --> 00:10:58 reputation was damaged by the non -renewal. The
00:10:58 --> 00:11:00 court said no on the liberty interest because
00:11:00 --> 00:11:01 the university hadn't actually said anything
00:11:01 --> 00:11:04 bad about him. But they did talk about the framework.
00:11:04 --> 00:11:08 Read this part. Where a person's good name, reputation,
00:11:08 --> 00:11:11 honor, or integrity is at stake because of what
00:11:11 --> 00:11:13 the government is doing to him, notice and an
00:11:13 --> 00:11:16 opportunity to be heard are essential. But reputation
00:11:16 --> 00:11:19 alone isn't enough. Courts have developed the
00:11:19 --> 00:11:23 stigma plus requirement. Stigma plus tangible
00:11:23 --> 00:11:26 harm. So here's a concrete example. Say, a state
00:11:26 --> 00:11:28 agency fires a building inspector. That's not
00:11:28 --> 00:11:31 great, but if he's at will, no property interest,
00:11:31 --> 00:11:35 so no due process required. But now, if we instead
00:11:35 --> 00:11:37 say that the state also issued a press release
00:11:37 --> 00:11:39 saying that the inspector was terminated for
00:11:39 --> 00:11:41 accepting bribes from contractors. Now his name
00:11:41 --> 00:11:43 is in the local paper. Every potential employer
00:11:43 --> 00:11:45 who Googles him sees corruption next to his name.
00:11:46 --> 00:11:48 Now his reputation is damaged and he can't get
00:11:48 --> 00:11:51 work. That's the plus. Exactly. So the firing
00:11:51 --> 00:11:54 alone doesn't trigger due process. At will employee,
00:11:54 --> 00:11:57 no property interest. But the firing combined
00:11:57 --> 00:11:59 with the public accusations of dishonesty does
00:11:59 --> 00:12:01 because the government has effectively branded
00:12:01 --> 00:12:03 him in a way that forecloses future employment.
00:12:04 --> 00:12:06 He's entitled to some kind of hearing to clear
00:12:06 --> 00:12:09 his name. But if the agency just fires him quietly,
00:12:10 --> 00:12:13 no press release, no public accusations, no liberty
00:12:13 --> 00:12:16 interest, right? Even if everyone in the office
00:12:16 --> 00:12:19 knows why he was fired. The stigma has to be
00:12:19 --> 00:12:21 public and officially imposed by the government,
00:12:21 --> 00:12:24 and it has to be coupled with tangible harm beyond
00:12:24 --> 00:12:27 hurt feelings. So the reputational damage has
00:12:27 --> 00:12:29 to come from the government itself, be publicly
00:12:29 --> 00:12:32 communicated, and be tied to something concrete
00:12:32 --> 00:12:35 like job loss or professional exclusion. Yes,
00:12:35 --> 00:12:37 that plus is essential. And this is a narrow
00:12:37 --> 00:12:40 gate. This matters for agencies. It means government
00:12:40 --> 00:12:42 employers can fire at -will employees without
00:12:42 --> 00:12:45 constitutional consequence, unless they publicly
00:12:45 --> 00:12:48 defame the person in the process. Which is why
00:12:48 --> 00:12:50 Smart Agency Council tells their clients, if
00:12:50 --> 00:12:52 you're going to fire someone, keep the stated
00:12:52 --> 00:12:55 reason generic. And then there's Castle Rock.
00:12:55 --> 00:12:58 which shows how narrow the gate can get. So this
00:12:58 --> 00:13:01 is town of Castle Rock v. Gonzalez, which was
00:13:01 --> 00:13:03 decided in 2005, and this case is difficult.
00:13:04 --> 00:13:06 Jessica Gonzalez had a restraining order against
00:13:06 --> 00:13:09 her estranged husband. Her husband then kidnapped
00:13:09 --> 00:13:11 their three daughters, and she called the police
00:13:11 --> 00:13:15 repeatedly, 7 .30, 8 .30, 10 .10 at night, begging
00:13:15 --> 00:13:17 them to enforce the restraining order. And their
00:13:17 --> 00:13:20 response was just to tell her to wait. He murdered
00:13:20 --> 00:13:23 their children. She sued for failure to enforce
00:13:23 --> 00:13:26 the restraining order, and Colorado law said
00:13:26 --> 00:13:29 officers shall arrest violators. This was mandatory
00:13:29 --> 00:13:33 language. Shall usually does mean mandatory,
00:13:33 --> 00:13:36 and she did have a court order. But the Supreme
00:13:36 --> 00:13:38 Court said she had no property interest in police
00:13:38 --> 00:13:41 enforcement. A well -established tradition of
00:13:41 --> 00:13:44 police discretion has long coexisted with apparently
00:13:44 --> 00:13:48 mandatory arrest statutes. Against that backdrop,
00:13:48 --> 00:13:51 a true mandate of police action would require
00:13:51 --> 00:13:53 some stronger indication from the Colorado legislature
00:13:53 --> 00:13:57 than shall use every reasonable means to enforce
00:13:57 --> 00:13:59 a restraining order, or even shall arrest or
00:13:59 --> 00:14:02 shall seek a warrant. So a well -established
00:14:02 --> 00:14:05 tradition of police discretion. Even shall doesn't
00:14:05 --> 00:14:08 overcome that. She had a restraining order. What
00:14:08 --> 00:14:11 she didn't have constitutionally was an entitlement
00:14:11 --> 00:14:13 to police enforcement of it. Mandatory statutory
00:14:13 --> 00:14:16 language isn't really mandatory for due process
00:14:16 --> 00:14:19 purposes, at least not for enforcement decisions.
00:14:19 --> 00:14:21 The court was worried about constitutionalizing
00:14:21 --> 00:14:24 every enforcement decision. If she has a property
00:14:24 --> 00:14:26 interest in enforcement, does everybody who calls
00:14:26 --> 00:14:29 911 have a property interest? The institutional
00:14:29 --> 00:14:33 concern is real, but so is the cost. Three children
00:14:33 --> 00:14:35 are dead, and the Constitution has nothing to
00:14:35 --> 00:14:38 say about the government's failure to act. Castle
00:14:38 --> 00:14:41 Rock is tragic. But it's also structurally consistent
00:14:41 --> 00:14:44 with everything we've been discussing. The court
00:14:44 --> 00:14:46 is limiting entitlements where recognizing them
00:14:46 --> 00:14:48 would overwhelm the system with procedural obligations.
00:14:49 --> 00:14:51 That's a choice about how far due process extends
00:14:51 --> 00:14:54 into discretionary government action. You can
00:14:54 --> 00:14:56 certainly disagree with where they drew the line,
00:14:56 --> 00:14:58 and no one's arguing that the facts here aren't
00:14:58 --> 00:15:00 horrendous. But the line does follow the logic
00:15:00 --> 00:15:04 of Roth. It is a hard case to sit with, if we're
00:15:04 --> 00:15:07 honest. It is. And it forces you to see the boundary
00:15:07 --> 00:15:09 clearly. Due process protects you when the government
00:15:09 --> 00:15:11 takes something you already have. It doesn't
00:15:11 --> 00:15:14 require the government to act for you, and it
00:15:14 --> 00:15:15 doesn't constitutionalize enforcement discretion.
00:15:16 --> 00:15:18 That line between taking and not acting runs
00:15:18 --> 00:15:21 through all of administrative law. And once you
00:15:21 --> 00:15:23 see it, you start seeing it everywhere, not just
00:15:23 --> 00:15:26 in policing, in licenses, in benefits, in jobs.
00:15:26 --> 00:15:28 Let me show you how far this logic travels in
00:15:28 --> 00:15:32 a less emotionally devastating context. So, in
00:15:32 --> 00:15:34 many states, you need a government license to
00:15:34 --> 00:15:37 braid hair. Okay, you're right. That is a much
00:15:37 --> 00:15:40 more significantly lighter context. A license
00:15:40 --> 00:15:43 to braid hair. Yeah, natural hair braiding. Some
00:15:43 --> 00:15:46 states have required hundreds of hours of cosmetology
00:15:46 --> 00:15:49 training, which often doesn't even cover braiding,
00:15:49 --> 00:15:53 plus exams, fees, ongoing continuing education,
00:15:53 --> 00:15:55 all before you can legally charge someone to
00:15:55 --> 00:15:58 braid their hair. That seems like a lot of regulatory
00:15:58 --> 00:16:00 overhead for something people have been doing
00:16:00 --> 00:16:03 for thousands of years. It is, and there's been
00:16:03 --> 00:16:05 a lot of litigation and legislative reform around
00:16:05 --> 00:16:07 it. But here's why it's a perfect due process
00:16:07 --> 00:16:10 illustration. Say you're Maya. You've jumped
00:16:10 --> 00:16:11 through all these hoops. You have your braiding
00:16:11 --> 00:16:13 license. You've been operating a braiding shop
00:16:13 --> 00:16:16 for eight years. One day, the state board sends
00:16:16 --> 00:16:18 you a letter saying your license is being revoked
00:16:18 --> 00:16:20 because you didn't complete some new continuing
00:16:20 --> 00:16:22 education requirement you didn't know about.
00:16:22 --> 00:16:25 So she has a property interest. The state issued
00:16:25 --> 00:16:28 the license. She relied on it under Roth. That's
00:16:28 --> 00:16:30 a legitimate claim of entitlement. All right.
00:16:30 --> 00:16:32 And we can contrast that with her neighbor, Alicia,
00:16:32 --> 00:16:34 who has been braiding hair out of her kitchen
00:16:34 --> 00:16:37 for years without a license. And for Alicia,
00:16:37 --> 00:16:39 the state tells her to stop or face fines. Alicia
00:16:39 --> 00:16:42 has no property interest in a license that she
00:16:42 --> 00:16:45 never received. Right. The state can change its
00:16:45 --> 00:16:47 licensing requirements. It can make them harder.
00:16:47 --> 00:16:50 It can make them easier. And regardless, Alicia
00:16:50 --> 00:16:52 has no constitutional claim to process because
00:16:52 --> 00:16:54 there's nothing to take away. Whereas with Maya,
00:16:54 --> 00:16:56 the state owes her process before it takes the
00:16:56 --> 00:16:59 license away. Notice of why and opportunity to
00:16:59 --> 00:17:02 respond. Under Loudermill, the state can't just
00:17:02 --> 00:17:04 define away those protections. So we have the
00:17:04 --> 00:17:06 same skill, same neighborhood, same government
00:17:06 --> 00:17:09 agency, but completely different constitutional
00:17:09 --> 00:17:12 treatment. And it also gets even more interesting
00:17:12 --> 00:17:14 because some states have deregulated hair braiding
00:17:14 --> 00:17:17 entirely. There's no license needed. Others have
00:17:17 --> 00:17:20 created exemptions. When a state eliminates a
00:17:20 --> 00:17:22 licensing requirement. All the mayas in the state
00:17:22 --> 00:17:24 lose their property interest. There's nothing
00:17:24 --> 00:17:26 left for due process to protect. So the state
00:17:26 --> 00:17:29 can create the entitlement and the state can
00:17:29 --> 00:17:31 eliminate it entirely. Right. What it can't do,
00:17:31 --> 00:17:33 after Loudermill, is keep the entitlement on
00:17:33 --> 00:17:35 the books and then take it away from individuals
00:17:35 --> 00:17:38 without due process. That's the constitutional
00:17:38 --> 00:17:41 line. And every occupational licensing board
00:17:41 --> 00:17:43 in the country operates within it, whether they're
00:17:43 --> 00:17:46 licensing nurses or hair braiders or plumbers
00:17:46 --> 00:17:49 or mortgage brokers. People see a bureaucratic
00:17:49 --> 00:17:51 letter from a licensing board and think, government
00:17:51 --> 00:17:54 red tape. They don't realize there's a constitutional
00:17:54 --> 00:17:56 framework underneath all of it. Right. Roth,
00:17:56 --> 00:17:59 Sunderman, Loudermill, these are all operating
00:17:59 --> 00:18:00 in the background every time a state issues,
00:18:01 --> 00:18:03 denies, or revokes a professional license. That's
00:18:03 --> 00:18:05 not red tape. That's the Fifth and Fourteenth
00:18:05 --> 00:18:09 Amendment. Okay, so the threshold question, property
00:18:09 --> 00:18:11 or liberty, is technical, but it determines whether
00:18:11 --> 00:18:14 the Constitution shows up at all. And the government
00:18:14 --> 00:18:16 has significant control over whether entitlements
00:18:16 --> 00:18:19 exist in the first place. That's very much the
00:18:19 --> 00:18:21 architecture of what we've been talking about.
00:18:21 --> 00:18:23 Roth gives agencies power to structure around
00:18:23 --> 00:18:26 due process. Senderman limits the power when
00:18:26 --> 00:18:29 informal practices create expectations. Loudermill
00:18:29 --> 00:18:31 says once the entitlement exists, procedures
00:18:31 --> 00:18:34 follow, and Castle Rock preserves enforcement
00:18:34 --> 00:18:37 discretion. Administrative law may not generate
00:18:37 --> 00:18:40 a ton of splashy Supreme Court moments, but so
00:18:40 --> 00:18:42 much of it is constitutional law embedded in
00:18:42 --> 00:18:45 everyday governance. Okay. So what's next then?
00:18:45 --> 00:18:48 All right. Assuming you've cleared the threshold,
00:18:48 --> 00:18:51 we decided you do have a property interest or
00:18:51 --> 00:18:53 potentially a liberty interest. How much process
00:18:53 --> 00:18:56 do you actually get? That's Matthews v. Eldridge.
00:18:56 --> 00:18:58 This is the balancing test that determines whether
00:18:58 --> 00:19:01 Linda the nurse gets a hearing before her suspension
00:19:01 --> 00:19:04 or after her suspension. Okay. From do I have
00:19:04 --> 00:19:07 a right to what is a right? So that does it for
00:19:07 --> 00:19:09 today's episode on administrative remedies. Thank
00:19:09 --> 00:19:11 you for joining us today. Please, if you enjoy
00:19:11 --> 00:19:14 this podcast, enjoy this episode, give us a like
00:19:14 --> 00:19:18 on Spotify, iTunes, or whatever platform you're
00:19:18 --> 00:19:20 listening on. And be sure to tune in next time
00:19:20 --> 00:19:22 where we'll continue to dive into the contours
00:19:22 --> 00:19:24 of administrative law, because remember, you
00:19:24 --> 00:19:26 can't fix what you don't understand.