The Mathews Balancing Test Explained

The Mathews balancing test is the framework courts use to determine how much due process the government owes you before it takes away a protected interest — and the answer is almost never as much as you'd expect.

You've established that the government is depriving you of a property or liberty interest. You're entitled to due process. But what does that actually mean? A full trial? A hearing before a neutral judge? A phone call? A letter with a chance to respond? The Constitution says the government must provide due process — but it doesn't say how much. That's where the Mathews balancing test comes in.

In Mathews v. Eldridge, the Supreme Court established a three-factor test that courts use to determine what procedures the government must follow. They weigh the private interest at stake — how important is the thing the government is taking away? They evaluate the risk of error — how likely is the current process to produce a wrong result, and would additional procedures reduce that risk? And they consider the government's interest — what would it cost in time, money, and administrative burden to provide more process? The result is a sliding scale. The more significant the deprivation, the more process you're owed. But the government's interest in efficiency always pulls in the other direction.

The Mathews test is elegant in theory and messy in practice. It's why you get a full hearing before the government terminates your Social Security disability benefits but might get almost nothing before it suspends your driver's license. It's why the process in immigration proceedings looks nothing like the process in federal employment disputes, even though both involve the government taking something important away. In this episode, we walk through the test, apply it to real scenarios, and explain why the balance almost always tips toward less process than people expect.

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What We Cover

  • The three factors of the Mathews balancing test: private interest, risk of error, and government interest
  • How courts actually apply each factor — and why the balancing almost always favors the government
  • Why Mathews v. Eldridge itself matters: the case involved termination of Social Security disability benefits, and the Court ruled that a pre-termination hearing wasn't required
  • The sliding scale of process: why some deprivations trigger full hearings and others trigger almost nothing
  • How the Mathews test applies across different contexts — benefits, employment, licensing, immigration, and student discipline
  • Why timing matters: the difference between a hearing before the government acts and a hearing after
  • The critique of Mathews: why some scholars and judges argue the test systematically undervalues individual rights by treating process as a cost rather than a constitutional requirement
  • How the Mathews framework connects to the adjudication spectrum — the test often determines where on that spectrum your case falls

Full Rough Transcript

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, we are in Oklahoma. The famed Tornado Alley, Oklahoma. And I think a lot of people outside this part of the country have a very dramatic picture of what tornado season looks like. Sirens go off. Everyone runs to the basement.

Marc: Yeah, that’s not really how it works.

Gwen: No, not even close. So a tornado watch comes out. What do you do?

Marc: Honestly, almost nothing. Watches are so common, you can’t change your life every time one gets issued. You’d never leave the house.

Gwen: Yeah, same. A warning’s different, though. A warning at least means that something’s actually been spotted on radar, a storm that might produce a tornado. So now you’re paying some attention.

Marc: Yeah, you’re checking the forecast, maybe thinking twice about whether to be out driving, but you still don’t go to a shelter.

Gwen: No, for sure. And a warning covers a pretty wide area, and it doesn’t even mean there’s a tornado at all. That means the conditions in your county or nearby counties have produced something that might spawn tornadoes. So you adjust, but you don’t panic.

Gwen: Right. And then the sirens go off.

Gwen: Yeah, this is the part people outside of Oklahoma don’t really understand.

Gwen: They really don’t. So the sirens here cover such a wide area that when they go off, most of the time the actual threat is miles away from you. They’re basically a signal to turn on the local news.

Gwen: Right. So you go and check what the storm chasers are saying. You find out where the tornado actually is and whether it’s moving towards you. The local stations here are really good at sending storm chasers to add to the weather radar.

Marc: Yeah. And only if they’re reporting something heading your direction, that’s when you actually move. An interior room, a shelter, some people go outside.

Gwen: Ideally not outside. But yeah, it’s easy to be on the coast watching the news and thinking, oh my gosh, the sirens were going off and people didn’t even seek shelter. How stupid are they? But that really misunderstands what the sirens are in practice.

Marc: Yeah, each stage really gets a different response. The stakes haven’t changed. Your family’s safety is at stake the entire time.

Gwen: Right. What changes is the probability. A watch means storms are possible. A warning means something’s been detected. Sirens mean it’s close enough to investigate. Confirmed rotation heading your way. Now you’re taking action.

Marc: Yeah, the risk goes up at every stage, so your response then escalates.

Gwen: And it’s worth putting this in perspective. Yes, tornadoes can be dangerous, but every time you put your kid in a car and drive somewhere, you’re doing something that’s genuinely dangerous. But you do it anyway because the alternative would be you never go anywhere. You don’t keep them home from school because car accidents exist or because they might catch a cold. You put them in a car seat. You drive carefully. You accept some residual risk as part of life. And tornado season is really the same calculus.

Gwen: And here’s something interesting. The government could actually fix the sirens. They could design it so that each siren only triggers when that specific siren is in the path of the tornado.

Gwen: Okay, but they haven’t done that.

Gwen: No, they sure haven’t. So instead, the sirens cover this huge area, which means that people learn to treat them as information rather than commands. The system’s design pushes the cost of sorting it out onto you.

Marc: So the process itself could be designed better, but because it isn’t, people have compensated by ignoring certain parts of the system.

Gwen: Right. But notice what you’re constantly doing. The stakes here never change. Your family’s safety is at stake the whole time. But you’re calibrating how likely the danger is right now and what it would cost to take more precautions.

Gwen: Probability and cost of response are different. The Supreme Court said due process works the same way. You calibrate the process you need to the situation. But the legal framework adds a variable that the tornado analogy doesn’t. So in the tornado, the stakes are constant. It’s always your family’s safety. But in Mathews, the stakes change. Losing your welfare benefits is different from a 10-day school suspension, which is different from getting your car towed. The amount of process the Constitution requires depends on three factors. The private interest at stake, the risk of getting it wrong without more process, and the cost of additional safeguards.

Marc: Last episode, we looked at Roth, Sindermann, and Loudermill to ask, do you have a property or a liberty interest at stake? A legitimate claim of entitlement, not just a hope or expectation.

Gwen: If the answer is no, you’re not entitled to any process. Government can act without a hearing full stop. Like Professor Roth himself, a one-year contract did not equal an entitlement to renewal. So there was no hearing required by the court.

Gwen: Today we ask, assuming you do have a property or liberty interest at stake, how much process does the government owe you before it acts?

Gwen: Before, that’s the key word. It’s the whole thing. Everyone agrees that you eventually get some kind of hearing. The fight is about timing. Can they cut off your benefits first and give you a hearing later? Or do they have to hear you out before they take anything away?

Marc: And the answer is?

Gwen: It depends.

Marc: Of course.

Gwen: Yeah. But Mathews tells you what it depends on. Roth tells agencies whether constitutional procedures attach at all. Mathews tells them what the minimum constitutional floor is, what those procedures have to look like, and specifically how much has to happen before the deprivation versus after.

Gwen: To understand what Mathews did, you have to understand what came before it. We already talked about Goldberg v. Kelly a couple episodes ago. That was the welfare termination case.

Marc: Right. New York was terminating welfare first and offering a hearing after that. The court said that wasn’t good enough when survival was at stake.

Gwen: Right. What we didn’t necessarily focus on was how much process the court actually required. Here, read what Brennan said about why a paper review wasn’t sufficient.

Marc: Written submissions do not afford the flexibility of oral presentations. They do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, written submissions are a wholly unsatisfactory basis for decision.

Gwen: So that’s the key insight, that there are situations where seeing a person, watching them testify, assessing their credibility, is fundamentally different from reading their file.

Marc: And Brennan is drawing on something really basic in evidence law. The whole reason we have live testimony is that demeanor matters.

Marc: So from that reasoning, the court required a full suite of procedures. Written notice, the right to appear in person, the right to a lawyer, witnesses, cross-examination, an impartial decision-maker, a written decision, essentially the entire architecture of a civil trial.

Marc: Right, for welfare termination. And that’s a remarkable amount of process.

Gwen: It is. So after Goldberg, the question is whether this applies everywhere. Since new cases kept arriving in all sorts of different contexts.

Marc: Give me some examples.

Gwen: Like school suspensions that need to be resolved in minutes.

Marc: Yeah. You can’t hold a trial every time a kid gets into a fight in the hallway.

Gwen: Right. Or employment terminations where something serious has happened and the employer needs to act really quickly. So Goldberg wasn’t wrong. It just wasn’t universal. So six years later, the court built a framework in Mathews that can calibrate the process to the context rather than just applying one template to everything.

Gwen: In Mathews, George Eldridge is receiving Social Security disability insurance based on chronic anxiety and back problems.

Marc: What we famously call SSDI. So not really a means-tested process, but based on his work history and his payroll tax contributions.

Gwen: Right. Still absolutely a property interest under Roth. He has a legitimate claim of entitlement to those benefits. And it’s undisputed.

Marc: The question is what happened when Social Security decided he was no longer disabled.

Gwen: Right. They sent him a questionnaire. He responded. His doctor submitted reports. A state agency reviewed the medical evidence on paper. And then Social Security sent a letter explaining the decision. And he could seek reconsideration and even eventually get a hearing.

Gwen: Right. It was just the benefits terminated before the hearing. That’s exactly what Goldberg said was unconstitutional for welfare, though.

Gwen: But the Supreme Court said disability benefits are different. And in explaining why, they gave us the three-factor test.

Marc: Identification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be affected by the official action. Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. And finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Gwen: So, these three factors balance against each other. The private interest, the risk of error, and the government interest.

Gwen: Right. First factor. The private interest that will be affected. This is really looking at how much does this matter to the individual.

Gwen: In Goldberg, it was about survival, literally the means to live.

Marc: Where does disability insurance fall on that spectrum?

Gwen: The reason we’re not getting the same result is because the court says SSDI is serious, but it’s not the same level as welfare. And this is where that really important distinction matters.

Marc: So SSDI versus SSI?

Gwen: Yeah. For SSDI, you qualify based on your work history and payroll tax contributions. It is not means tested. Unlike SSI or Supplemental Security Income, which is means tested. So these are two kinds of disability benefits. Eldridge was on the first one, SSDI, and the court reasoned that this type of recipient was more likely to have other resources.

Marc: Whether that assumption was actually true for most SSDI claimants is definitely a question at least worth flagging.

Marc: Because, candidly, a lot of people on SSDI are not exactly flush with backup income.

Marc: They definitely are not.

Gwen: But the court was still drawing this line. And this was also before welfare was overhauled in the 1990s. So at the time, welfare itself did function as a more true safety net, like a backstop for people who had literally nothing else. SSDI, by contrast, was a benefit you earned through work, and the court assumed that meant you had other resources to draw on while you waited for a hearing.

Marc: Okay, let’s talk factor two.

Gwen: All right, the risk of erroneous deprivation through the procedures used and the probable value of additional safeguards. So, really, two questions in one. How likely is the government to get it wrong, and would better procedures actually fix it?

Marc: Right, this is where the two cases really diverge. In Goldberg, they’re saying that welfare eligibility will turn on these really subjective factors. Is this person really looking for work? Do they have hidden resources? Those are credibility determinations, exactly what Brennan said would require an in-person, face-to-face evaluation.

Gwen: But in Mathews, the court says that disability is more objective. And here’s where they say it.

Marc: The decision whether to discontinue disability benefits will turn in most cases upon routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they have personally examined.

Gwen: That’s where the criticism comes in. Because we just spent an entire episode talking about consultative exams, doctors the claimant didn’t choose, 30-minute appointments, examinations ordered by the very agency that was deciding the case.

Marc: “Routine, standard, and unbiased” is doing a lot of work in that sentence.

Gwen: It really is. At least for some conditions, the court’s assumptions probably hold. A broken bone will show up on an x-ray. But chronic pain, depression, fibromyalgia? In those types of conditions, the real question is, how much is this limiting you? Paper review will miss exactly the kind of thing an oral hearing would catch.

Marc: Which is interesting because Brennan already said this in Goldberg. Written submissions are wholly unsatisfactory when credibility matters. And for a lot of disability claims, credibility is central. The claimant says the pain is debilitating, the medical records show a diagnosis, but can’t quantify the experience.

Gwen: This is the most criticized part of Mathews. But it’s decided at a time when more of the claims probably were more objective.

Marc: The court treated disability like a documentary question.

Marc: And how’s that held up?

Gwen: Congress did eventually strengthen ALJ hearing protections and allowed benefits to continue for some claimants. This kind of reflects the reality of the limits of paper review. Here, the practice outgrew the constitutional minimum.

Gwen: Okay. What’s the third factor?

Gwen: This is the government’s interest. This includes the fiscal and administrative burden. Pre-termination hearings for every disability case would be enormously expensive.

Marc: How expensive?

Gwen: Well, we have thousands of ALJs. We have support staff. They’re already backlogged stretching months. If you require a hearing before termination, benefits keep flowing until the hearing happens.

Marc: Even if the recipient actually isn’t disabled anymore? So the government is paying benefits it may never recover.

Marc: Yes, exactly. It’s worth noting that the government interest also includes the interest in making sure people get the benefits they should actually get. So it’s not just trying to limit the cost as much as possible.

Gwen: But once we have all of these in mind, we balance them. A meaningful private interest, but not survival level in disability cases. The theoretical low marginal value of additional procedures, given the documentary nature of the evidence. And a high government burden if you require additional procedures. So a post-termination hearing is constitutionally adequate.

Gwen: Right. That’s the holding. You get a hearing, just not before termination.

Marc: But if you’re sitting at home and you can’t work and the benefits you’ve been living on just stopped and the Constitution says, just wait, we’ll get to you.

Marc: Right. But remember, there was at least notice about what was happening and there was an opportunity to submit additional documentation. So it’s not that you’re going to automatically just get a letter in the mail one day that says your benefits have stopped. There is something. It’s just not going to be an oral hearing.

Gwen: This gap between “you’ll get a hearing eventually” and “you have no income right now” can be a year or more. That is a long time to go without benefits you’ve been relying on.

Marc: And one of the things to make clear at this point, right, is when you do have that hearing and you do get those benefits, you get caught up.

Gwen: Right. You do. If they took it away erroneously, when they determine they took it away erroneously, you’ll get all of those back benefits. And so the court is weighing the system’s cost against this person’s life.

Marc: Yeah. And here the system won.

Gwen: You can definitely disagree with how the court characterized these factors. A lot of people do. We’ve already said that these assumptions don’t all necessarily hold up in practice, but this is what they’re reasoning.

Marc: Did they basically do this everywhere?

Gwen: To some extent, yes. We can look at Goss v. Lopez. This was decided between when Goldberg and Mathews were decided. So they’re obviously not applying the Mathews test, but they’re functionally looking at the same factors. In Goss, students in Columbus, Ohio, were suspended for up to 10 days without any hearing.

Gwen: OK, the first question here is, do these students have a property or a liberty interest?

Marc: The answer is yes. Ohio law required free education through high school. That created an entitlement under Roth. Plus, they had a liberty interest in their reputation as well as the punishment by the state. So suspension implied wrongdoing.

Marc: Yeah, so they definitely cleared the threshold here. They have some interest that needs to be protected. So now we talk about how much process they’re due.

Marc: Let’s look at these factors. Factor one, private interest. Education matters, but we’re also talking about a 10-day suspension, not expulsion. It’s just a temporary interference.

Marc: Right. So factor two, the risk of error. School discipline situations are fast moving. A fight breaks out. Principal needs to respond, but mistakes happen. The wrong kid gets blamed or the story is more complicated than it looks. Some process would catch those errors.

Marc: And the last one. The government interest in maintaining order. Schools can’t really hold a full trial every time a student misbehaves.

Marc: Okay, let’s read what the court requires.

Marc: We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.

Gwen: That’s it. Tell the student what they’re accused of and give them the chance to explain. This is really minimal. This can happen in a conversation in the principal’s office. We don’t need any sort of formal hearing, no lawyers, no cross-examination.

Marc: This is dramatically less than Goldberg. But more than nothing.

Gwen: Right. This is the low end of what the test is going to say we need.

Marc: So Goss is really minimal process. All you need is a conversation. Notice of what you’re accused of and an opportunity to respond.

Gwen: We also talked about Loudermill last episode when we mentioned the bitter with the sweet. Let’s work through Mathews with that one. Remember, James Loudermill was a civil service employee. He had a property interest in his job, but he lied on his application to get the job, so they fired him. He had a full hearing afterward, but nothing before.

Marc: All right, let’s look at the factors. First one, the private interest.

Marc: Okay, losing your job is economically serious. Not survival level like welfare, but more significant than a school suspension.

Marc: Right. And losing your job is also different from disability because there’s no back pay guarantee here. So if you’re unemployed for months while you wait for a hearing, you might lose out on that income even if the court determines you were wrongly discharged.

Gwen: Okay. Factor two, risk of error.

Marc: Higher than Mathews. Employment termination often turns on disputed facts like, did he really lie? Was it a mistake? Was the lie material?

Gwen: Right. We could have a situation here where he didn’t realize he’d been convicted of a felony because he’d reached some plea agreement that resulted in probation. He was never in jail and just didn’t understand it was technically a felony.

Marc: Yeah. And an oral explanation actually could matter here. It could shape his credibility and be able to respond to these things.

Gwen: It could also be a situation where he generated a resume through AI and it created jobs that he never was at. That’s for our students out there in the world. Don’t use AI in that way.

Marc: Right. That gets us to the third factor, right, which is the government’s legitimate interest in removing problem employees quickly.

Gwen: So here’s the thing. What process was Loudermill actually asking for? Not a full Goldberg trial, just notice of the charges and a chance to respond. And that’s pretty cheap.

Marc: I mean, it’s a meeting with your supervisor. It’s a letter and a response.

Gwen: Right. So the argument that the government can’t handle the burden loses force when the additional procedure being requested is minimal. And that’s a really important point about how we analyze these. When you’re making a Mathews claim, you’re saying here are the additional procedures I should have gotten before deprivation. And here’s how they would have dramatically reduced the likelihood of error. The court needs to compare how much more you’re asking for against what difference it would actually make.

Gwen: So again, we’ve got notice and an opportunity to respond before termination and a full evidentiary hearing afterwards.

Gwen: I want to go back to something. In Mathews itself, the government won. And in Goss, the students got minimal process, basically a conversation with their principal. Even in Loudermill, pre-termination process was just notice and a chance to respond. But in Goldberg, it’s the outlier where the individual got serious process. Is there a pattern we’re seeing here?

Marc: Really, realistically, Goldberg was an outlier. That was the Supreme Court at the height of sympathy for people getting government assistance. But in most cases, it’s true that government interests are easier to quantify than individual suffering.

Gwen: These tests aren’t always in favor of the government.

Marc: Like Goldberg.

Gwen: Right. So in Goldberg, the individual won and won big. Factor two cut hard for the claimant because credibility mattered and a paper review couldn’t capture that.

Marc: OK, but what about the others?

Gwen: So in Loudermill, factor three barely helped the government because the requested procedure was so cheap. All they’re asking for was a conversation before firing, something that costs almost nothing.

Marc: The test itself doesn’t automatically have a built-in thumb on the scale.

Marc: So where does the tilt then come from?

Marc: Certain categories of cases, particularly mass adjudication systems like disability. When we’re talking about one government employee’s termination, the cost of a pre-termination hearing is trivial. When you’re talking about millions of disability determinations, the cost of pre-termination hearings for all of them is enormous.

Gwen: The test is sensitive to context, which can be both a strength and a source of criticism.

Marc: So really, we need some kind of balancing test. What would the alternative be?

Gwen: In Goldberg, the alternative is everything. So we could do full trial-type hearings before the government could act. This would absolutely paralyze the administrative state and doesn’t exist in any form now. Or no constitutional floor at all is an alternative.

Marc: Right. Which would leave individuals at the mercy of whatever Congress decided to provide.

Gwen: So Mathews is at least a middle ground. It’s imperfect, but it’s administrable. And it’s flexible enough that it can require almost nothing in Goss and a near trial in Goldberg.

Marc: So the flexibility is really the point and the problem.

Gwen: Yes. Well put.

Marc: Yeah, I’ve prided myself in my ability to turn a phrase.

Gwen: OK, let’s get a concrete example to explain this.

Gwen: All right. We can think about what happened after 9/11. The government created the no-fly list. People barred from commercial air travel based on suspected terrorist connections.

Marc: And so how much process did you get?

Gwen: For years, there was basically nothing. You found out you were on the list when you showed up at the airport and you couldn’t board. There was no notice of why, no way to challenge it, no hearing of any kind.

Gwen: OK, let’s run the Mathews factors on this no-fly list. What about the first one, the private interest?

Marc: OK, it’s pretty significant. You can’t fly commercially. That affects your job. It affects your family, your ability to function in modern life.

Gwen: And you’ve probably already spent at least the money for one airline ticket.

Marc: We’ll find out. Yes, and potentially money for other people you were traveling with that you can’t use. And there’s a real stigma. Being on the no-fly list is going to imply you’re a terrorism suspect.

Gwen: Okay. Factor two, risk of error.

Marc: It has to be significant. These lists are compiled from intelligence tips, database matching. The potential for mistakes is real. People with similar names can get flagged. And without any real process at all, there’s no mechanism to catch those errors.

Gwen: Right. There are a lot of names that are super common. So in those instances, the marginal value of even basic procedures would be high.

Marc: Okay. Factor three, the government interest in preventing terrorism is about as high as you can get.

Marc: Right. But that doesn’t mean we need zero process. You can protect intelligence sources without denying people any opportunity to respond at all.

Gwen: Right. That’s what happened. Lawsuits forced the government to create DHS TRIP, the Department of Homeland Security Traveler Redress Inquiry Program. And that created a process to challenge your inclusion on the list.

Gwen: So did travelers excluded get a full hearing?

Gwen: No, they definitely didn’t. The government is still not going to be revealing classified information, but you at least get notice you’re on the list and you can submit evidence and there’s a review.

Marc: OK, Mathews told the government your interest is real, but zero process isn’t the answer. Find some middle ground.

Marc: Right. Notice the pattern. We have a national security crisis. The government built a system with almost no process. Court said we take the government interest seriously, but you still have to give people something. When the system doesn’t give people any meaningful way to contest what’s happening to them, Mathews is the tool that courts use to force a redesign.

Gwen: That’s true whether we’re talking about a no-fly list or benefits termination. And the framework is the same.

Marc: Right. The framework’s the same. The factors shift and the results change.

Gwen: And this happens constantly across the administrative state. When the VA built its new benefit appeals program, or when any agency is creating procedures, they should be thinking about Mathews. And so it becomes both a constitutional floor and a design framework.

Gwen: Right. So remember those tornado sirens?

Marc: Yeah, the government could do a better job designing the system to target alerts instead of doing so on a countywide basis.

Gwen: Right. So same thing here. Mathews doesn’t just tell agencies the constitutional minimum. It tells them that if their procedures are poorly designed, if they’re the equivalent of blasting sirens for the entire county, the system stops working.

Gwen: Roth tells you whether you’ve triggered due process protections. Mathews tells you what those protections look like. So together they form this operating system for how agencies handle individual adjudication.

Marc: Most people think that due process is one thing, either you got it or you didn’t. But it’s actually a scale, a spectrum.

Gwen: Right. So it depends on what you’re losing, on how likely mistakes are, and what additional procedures would actually cost and the difference they would make.

Marc: Okay, let’s try a new one. Your car gets towed for illegal parking. Do you get a hearing before they tow it?

Gwen: Well, what do you think?

Marc: No. There’s moderate private interest. It’s your car, but you’ll get it back. Low risk of error. Either you were parked illegally or you weren’t. High government interest in clearing illegally parked cars quickly. So post-deprivation hearing is usually fine.

Gwen: All right. So let’s go back to what we mentioned at the very beginning. These emergency situations, like a pilot who might be drunk.

Marc: The government interest now spikes. Hundreds of lives per flight. You suspend first and then have a hearing afterwards. That’s been the law for almost 50 years.

Gwen: It is baked into how every agency designs its procedures or how every agency should be designing its procedures. And it means that the amount of process you get before the government acts depends on what you’re losing, how likely it is that they will get it wrong, and what it would cost to do more.

Marc: Which brings us to the next question. Everything we’ve covered so far, talking about hearings and the procedural safeguards that the Mathews balancing test puts in place, this assumes that agencies are the right venue for these proceedings, that the government can adjudicate claims and impose penalties through their own tribunals rather than through the federal courts.

Gwen: And the Article III courts and the right to a trial by jury are implicated in the resolution process.

Marc: Right. The courts are actually important in a couple ways. We’re going to do a mini episode in a couple days on the immigration stuff that we’re facing right now and how Mathews works there. And the next full episode, we will be talking about SEC v. Jarkesy. The Supreme Court said that some agency enforcement actions can’t stay in-house. They have to go to a federal court with a jury. And that’s not just a procedural tweak. That’s a challenge to the basic premise that agencies can adjudicate at all.

Gwen: Right. We’ll find out what Jarkesy means for the agencies that have relied on in-house adjudication for decades and why this is yet another crack in the foundation of the administrative state.

Marc: So that does it for today’s episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast, 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. 



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