Due Process Explained: What the Government Owes You Before It Takes Something Away

Due Process Explained: What the Government Owes You Before It Takes Something Away

The government wants to cut off your disability benefits. Revoke your professional license. Deport you. Terminate your federal employment. Before any of that happens, don't you get some kind of hearing? The answer is yes — but what that hearing looks like, when it happens, and how much process you're actually entitled to depends on a set of legal questions that most people never think about until the government is already at their door.

Due process is one of the most recognized phrases in American law and one of the least understood. Most people think it means fairness — that the government has to treat you fairly before it does something that hurts you. That's not wrong, but it's incomplete. Due process under the Fifth and Fourteenth Amendments is a specific constitutional requirement with its own framework, its own triggers, and its own limits. It doesn't apply to everything the government does. It applies when the government deprives you of life, liberty, or property. And the amount of process you're owed isn't fixed — it depends on what's at stake, what procedures the government is already providing, and what additional procedures would cost.

That balancing act is what makes due process both powerful and frustrating. It's the reason you get a full hearing before the government revokes your Social Security benefits but might not get one before it suspends your driver's license. It's why a federal employee facing termination has different procedural rights than a contractor whose agreement isn't renewed. The constitutional guarantee is real, but its contours shift depending on the context — and understanding how courts draw those lines is essential for anyone trying to navigate a system where the government has the power to take something away from you.

In this episode, we explain what due process actually requires, when it's triggered, and how courts decide how much process is enough. We go beyond the textbook definition to explore why due process exists not just to get the right answer, but to ensure that people are treated with dignity by a government that has power over their lives.

Listen Now

Spotify | Apple Podcasts | Listen on our site

What We Cover

  • What due process actually means under the Fifth and Fourteenth Amendments — and what it doesn't
  • The threshold question: when does due process apply? What counts as a deprivation of life, liberty, or property
  • The Mathews v. Eldridge balancing test — how courts weigh the private interest at stake, the risk of error, and the government's interest to determine how much process is required
  • Why due process isn't one-size-fits-all — the reason different government actions trigger different levels of procedural protection
  • The difference between getting a hearing before the government acts versus after — and why timing matters enormously
  • Why due process is about more than accuracy — how the requirement serves dignity, legitimacy, and the relationship between government and the people it governs
  • Real-world applications: what due process looks like in benefit terminations, government employment, licensing, immigration, and other contexts where the government takes something away
  • How due process connects to the broader structure of administrative adjudication and why the procedures agencies use are often shaped by constitutional requirements

Full Transcript

S2E5 Transcript — Why Due Process Matters

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: Marc, let’s imagine that you are on Social Security disability and you get a letter from Social Security tomorrow saying that your disability benefits are being terminated in 30 days. There’s no explanation. There’s no hearing. There’s no instructions on what to do next.

Marc: That’s terrifying. I mean, those benefits might be the only thing between me and eviction. And there’s nothing in the letter telling you what to do about it. I mean, can they actually do that?

Gwen: So that question, whether the government has to explain itself and whether it has to listen to you before it takes something away, that’s what due process is all about. And today we’re going to talk about why we care. We’re not talking about the legal tests yet or the cases. Just why does any of this matter?

Marc: Because it seems obvious that the government should have to explain itself when it either deprives a citizen of rights or otherwise interferes with something that they’ve become expected to have.

Gwen: Yeah, it seems obvious, but the Constitution doesn’t say the government always has to give you process. It says the government can’t deprive you of life, liberty, or property without due process of law. Actually, let’s just read the Fifth Amendment’s due process clause. It’s short.

Marc: No person shall be deprived of life, liberty, or property without due process of law.

Gwen: It is short. It is. And then the 14th Amendment applies the same thing to the states.

Marc: Nor shall any state deprive any person of life, liberty, or property without due process of law.

Gwen: So first you have to figure out if something counts as life, liberty, or property. Then you have to figure out what due process means in that context.

Gwen: Before we go further, let’s make sure we’re using due process the same way lawyers actually use it. Because due process does double duty in the law.

Marc: Yes. And it means that people are often talking past each other.

Gwen: On the one hand, there’s procedural due process. That’s about how the government acts, whether you have notice, a hearing, a chance to be heard, a neutral decision maker.

Marc: Right. And procedural due process is asking whether the government followed fair procedures before it took something from you.

Gwen: And then there’s substantive due process, which is a different question entirely. That’s about whether the government can do the thing at all, regardless of how fair the procedures are.

Marc: That’s where cases like Griswold, Roe, Obergefell, that’s where these cases come into play and shape the different rights people have. The issue isn’t, did the state give you a hearing before banning contraception or same-sex marriage? It’s, can the state ban those things at all?

Gwen: Yes, exactly. So when someone is challenging a ban on a medical procedure, that’s substantive due process. Can the government do this? When a teacher challenges being fired without a hearing, that’s procedural. Did the government do this fairly? Different question, different analysis.

Marc: And substantive due process is controversial because critics say it lets judges recognize rights that aren’t explicitly spelled out in the Constitution. Scalia called it an oxymoron.

Gwen: Though I’d note the response is that due process of law has never meant only procedural box checking. It’s always had a substantive component about lawful government action. But for this season, where we’re talking about administrative adjudication, we are firmly in procedural due process territory. Agencies generally have the power to act. The question we’re asking is, what process do you get before they do?

Marc: So when someone challenges an agency decision, social security, immigration, licensing, it’s not, does the agency have authority to regulate here? It’s, did you get noticed? Did you have a meaningful opportunity to be heard? Was there a neutral decision maker? Was there a reasoned explanation? These are procedural due process questions.

Gwen: And these are the questions we’re going to keep coming back to all season.

Marc: All right. Why do we care so much about procedural due process?

Gwen: The obvious answer is to get the right result. If the government has to explain itself and has to listen to you, it’s more likely to make correct decisions.

Marc: That makes sense. If I can show them evidence that I’m still disabled, they won’t or shouldn’t cut my benefits.

Gwen: Right. But accuracy isn’t the only value we’re concerned about. And it might not even be the primary one.

Marc: OK. What else is there?

Gwen: There’s legitimacy. Let’s say the government is making some decision about you and it turns out to be correct. They got it right, but they never told you what was happening. They never ask for your input. They never explain their reasoning. How do you feel about that decision?

Marc: It seems suspicious. It seems like the deck is stacked. I mean, even if it is the right call.

Gwen: Yeah, a correct decision reached through unfair procedures just doesn’t really feel legitimate. It feels arbitrary. And there’s a whole bunch of research on this, on procedural justice theory. It says people are much more willing to accept outcomes they don’t like, even outcomes that hurt them, if they believe the process was fair.

Marc: And that’s kind of the entire basis of our court system.

Gwen: Okay, I buy that for high stakes situation, but is it always true? If the IRS correctly calculates that I owe an extra $200, do I really need an elaborate hearing to accept that?

Marc: Great question. And no, you probably don’t. The level of process should match the stakes. But even there, you should get notice of what they’re claiming and a chance to dispute it. The point is that legitimacy isn’t binary. It’s a spectrum that tracks with the consequences.

Gwen: Okay. That sounds right, but I keep coming back to something. Courts handle due process all the time. Criminal defendants get Miranda rights, the right to counsel, trial by jury. What’s different about agencies?

Marc: The real concern is just the entire institutional structure. In courts, the entity that’s deciding the case is separate from the entity that investigated and prosecuted. The judge didn’t choose to bring the case, but in an agency enforcement action, it’s the agency investigating. It’s the agency deciding that there’s a violation. It’s the agency bringing the case. And the initial adjudication often happens inside the same institution.

Gwen: So not necessarily by the same person, but within the same organization.

Marc: Right. Agencies can build internal separation in some instances where we have different staff and different offices. Sometimes ALJs with statutory protection. We talked about that early on. But it’s still one institution exercising multiple functions. Due process doctrines exist to manage that structural overlap. The question isn’t, can agencies adjudicate? They certainly can. The question is, what procedures are required to make it fair?

Gwen: So procedural due process in the agency context is about compensating for institutional power and asymmetry.

Marc: Yes. The individual is faced with an entity that has generally superior expertise, superior resources, repeat player status, and policy commitments. That is an inherently unbalanced situation.

Gwen: The Supreme Court recognized this pretty early on. In 1970, in Goldberg v. Kelly, the court required hearings before welfare benefits could be terminated. Marc, read what Justice Brennan wrote about why.

Marc: For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Thus, the crucial factor in this context, a factor not present in the case of the blacklisted government contractor, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended, is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.

Gwen: That’s Brennan saying you can’t cut someone off from the means of survival and tell them to appeal later. The timing of the process matters enormously.

Marc: Because by the time the error is corrected, the damage has already been done.

Gwen: Right. So you could reinstate somebody’s benefits after an appeal. You could pay them what they were supposed to get. But what happens during the six months they waited? They missed rent. There were medications they couldn’t afford. They had debt that piled up. You can turn the benefits back on, but you can’t necessarily undo all the consequences that occurred when they were off.

Marc: Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence in turn adversely affects his ability to seek redress from the welfare bureaucracy.

Gwen: Cutting off his benefits doesn’t just harm the person. It makes it harder for them to fight the decision.

Marc: Exactly. That deprivation undermines the ability to challenge the deprivation. That’s why the timing of process matters just as much as the amount of process.

Gwen: Here’s another way to think about why due process matters. The government makes mistakes. That’s inevitable. But the question is, who should pay for those mistakes?

Marc: I think I see where you’re going. I mean, if you require a hearing before the government acts, the government absorbs more of the cost of delay. If you let the government act first and hear you later, the individual absorbs the cost of being wrong.

Gwen: Yes. So due process is also fundamentally about this risk allocation. When the government acts first and listens later, the individual bears the cost of error. When the government has to listen first, it bears more of the cost.

Marc: OK, but here’s where I’d push back. You could describe every government regulation that way. The FDA delays the drug approval while it gathers more data. Patients who might have benefited bear that cost. OSHA requires an extensive hearing before imposing a safety standard. Workers in an unsafe factory bear that cost during the delay. More process isn’t always better for the people we’re trying to protect.

Gwen: That’s also an important point, and one that the Supreme Court has recognized, that due process doesn’t always mean more process. Sometimes speed is what protects people. If there’s contaminated food on store shelves, the FDA can’t wait for a full hearing before it issues a recall. And the Constitution accommodates that.

Gwen: This was addressed in Fuentes v. Shevin, which is about whether the state should seize someone’s property before giving them a hearing. And here, Justice Stewart explained the general principle.

Marc: The constitutional right to be heard is a basic aspect of the duty of the government to follow a fair process of decision-making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment.

Gwen: So to minimize substantively unfair mistaken deprivations. Notice the court isn’t saying eliminate all mistakes. That’s impossible. The goal is to minimize the mistakes, which means calibrating the process to the situation.

Marc: So the Constitution doesn’t require a hearing in every case before the government even acts.

Gwen: Right. The court has recognized exceptions for emergencies, for situations where a delay would cause harm, and for mass government programs where individual pre-deprivation hearings would be completely impractical. But those are exceptions to the general rule that you need a hearing before the government takes something from you.

Marc: Okay. And I assume courts have developed some framework for figuring out when you need more process versus less process.

Gwen: They have. It is called the Matthews v. Eldridge Balancing Test, and it’s coming in a couple episodes. But the core insight there is what we’ve been discussing. You’re always balancing the risks of erroneous deprivation against the cost of additional procedures. When the stakes are high and mistakes are hard to fix, you need more process up front. When the stakes are lower or the government has a good reason to act quickly, like protecting people, less process may be constitutionally adequate.

Marc: So when courts ask what processes do, they’re not just counting procedures. They’re asking how serious is the risk of error, how severe are the consequences if the government is wrong, and how much protection is needed before that harm occurs.

Gwen: Right. Those aren’t formalities. That’s how the law tries, imperfectly, but still tries, to decide who bears the cost when the government exercises power over an individual.

Marc: It’s like the administrative law learned hand formula.

Gwen: Okay, you keep saying the system is imperfect. Let me press you on that. If due process is so important, why can’t we just require full process every time?

Marc: If we did, government would completely grind to a halt. We’ve already talked about how Social Security processes millions of disability claims a year. If every single one required a full trial-type hearing before any decision, lawyers, cross-examination, a judge, people would wait years for an initial decision.

Gwen: Which might be worse than the current system, even with its flaws.

Marc: Yes. There’s a cost. Every procedural protection costs money. Resources that could actually go to providing benefits would instead be spent just doing these often unnecessary hearings. At some point, the process becomes so expensive that it’s going to undermine the program itself.

Gwen: So there’s the tension between treating each case as individually important and running a system that actually works at scale.

Marc: Yes, that’s always there. And different situations are going to call for different balances. Revoking someone’s medical license probably deserves more process than denying a parking permit. Courts have developed a framework for weighing these considerations, and we’ll get there. But the question is how much and when and in what form.

Gwen: Which is why there’s so much litigation about it.

Marc: Yes, decades.

Gwen: So here’s one thing most people don’t think about. If you have a driver’s license and you get a DUI, the state can suspend your license. Everyone knows that. What most people don’t know is that due process determines exactly how that works.

Marc: Okay, so what do you mean?

Gwen: So in most states, there are two separate proceedings. There’s a criminal case for the DUI charge and then an administrative proceeding by the DMV to suspend your license. That administrative suspension can happen much faster, sometimes within days of the arrest, and the procedures are completely different from what you’d get in a criminal court.

Marc: So you might lose your license before you’re ever convicted of anything.

Gwen: Yes, often yes. And the question of what process you’re owed before that happens, how much notice, whether you get a hearing before or after the suspension, what kind of evidence the DMV needs, that’s all due process law. Courts have litigated this extensively. Some states require a hearing before suspension. Others suspend first and give you a hearing afterwards. The Supreme Court has said both can be constitutional depending on the circumstances.

Marc: So whether you can drive to work tomorrow might depend on which state you live in and what process they provide.

Gwen: Yes, exactly. And think about what losing a license means for someone in a rural area with no public transit. This isn’t just an inconvenience. It can cost you your job. It can cost you your ability to get your kids to school, your access to medical care. The stakes of that administrative proceeding might actually be higher than the stakes of the criminal case.

Marc: And most people don’t realize there’s a constitutional question embedded in the DMV letter telling them their license is suspended.

Gwen: Right. They see bureaucracy. They don’t see the Fifth and Fourteenth Amendment working in the background or failing to work.

Marc: OK, we’ve talked about why due process matters, accuracy, legitimacy, who bears the cost of mistakes. But does everyone get it? Any time the government does anything that affects you?

Gwen: No. And this might be the most uncomfortable part of all this. The Constitution doesn’t guarantee fair procedures every time the government acts. It only kicks in when the government is depriving you of life, liberty or property. If what the government is doing doesn’t fit those categories, the Constitution has nothing to say about it.

Marc: OK, so figuring out what counts is the whole ballgame.

Gwen: It’s certainly the initial gate. And next time, we’re going to talk about how the court built it. Two professors get fired from state universities the same year. One gets constitutional protection. The other gets nothing. And the distinction between them still controls how every government benefit, every public job, and every professional license works today.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify. iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember, you can’t fix what you don’t understand.

Related Guides

Powered by Beamly