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Due Process in Administrative Law: Balancing Fairness and Efficiency

There is a growing debate about what is constitutionally required to satisfy procedural due process and if available due process protections are sufficient.  Can fairness and efficiency actually be balanced when it comes to due process in administrative law? 

What is Administrative Law?

Administrative law is the body of law created by the agencies and departments of the government, which carry out the laws passed by Congress or a state legislature. When Congress passes a law on a complicated issue, Congress often needs help determining all of the details of how the law will be enforced and implemented. Administrative agencies and government departments fill in those gaps for Congress and pass additional rules and regulations to achieve Congress's goals.

People often deal with administrative agencies and administrative law when they apply for government benefits.  In addition to regulating government benefits like Social Security, administrative agencies also implement federal and state laws affecting almost every industry. For example, government bodies create and enforce workplace safety regulations. The EPA passes regulations and rules to enforce Congress's goal of protecting the environment.  States also have their own administrative agencies to implement and execute laws passed by their state legislatures.

What is Due Process?

The American legal system is founded upon principles of due process.  Due process is best defined in one word – fairness – and means that a party has the right to receive notice of claims against them and an opportunity to be heard in a meaningful manner and at a meaningful time.  Due process includes procedural standards that courts must uphold in order to protect people’s personal liberties as well as a range of liberty interests that statutes and regulations must not infringe upon.

Due process applies to both natural persons, including citizens and non-citizens, as well as to “legal persons” (corporate personhood).  The Fifth Amendment tells the federal government that no one shall be “deprived of life, liberty, or property without due process of the law”.  The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe the legal obligation of all states.

Overview of the Due Process Clause

After the Civil War, Congress adopted several measures to protect individual rights from interference by the states, including the Fourteenth Amendment.  The Due Process Clause of the Fourteenth Amendment is the source of a wide range of constitutional rights, including some that are revered and some that are controversial, including:

Procedural protections, such as notice and a hearing before termination of entitlements

Individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and criminal procedure protections

Fundamental rights that are not specifically enumerated elsewhere in the Constitution

Role of the Administrative Procedure Act

The Administrative Procedure Act (APA) is a federal act that governs the procedures of administrative law.  Enacted in 1946, the law stipulates the ways in which federal agencies may make and enforce regulations.  The APA was in response to the growing concern about the rapid increase in the number of powerful federal agencies in the first half of the 20th century.  The APA applies to both the federal executive departments and the independent agencies.  Prior to the APA, there were no federal laws governing the general conduct of administrative agencies.

Considerations for Procedural Fairness

Procedural fairness is concerned with the procedures used by a decision-maker, rather than the outcome.  Procedural fairness requires a fair and proper procedure to be used when making a decision.  What makes the administrative proceeding procedurally fair varies between administrative bodies, but the following are general examples of what may be needed for procedural fairness:

The right to know the case against you


The opportunity to be heard

An opportunity to give evidence and cross-examine


Right to a lawyer

Oral or written reasons for the decision

Impact of Efficiency on Due Process

While millions of Americans are charged with felonies or misdemeanor offenses each year, each is guaranteed to have the right to due process.  This means that their interaction with the justice system must be appropriate and responsive to their individual case and unique circumstances.  Criminal courts are instructed to resolve cases without delay and allow each person to have a speedy and public trial.  Unfortunately, the courts are not efficient enough to handle the caseloads brought on by due process.

Because of the inefficiency, delays are common in the justice system.  These delays can negatively impact those charges with a criminal offense in a number of ways.  For those held in pretrial detention, delays mean an extended time incarcerated while still legally innocent.  Longer pretrial detentions usually come with added pressure to accept a guilty plea to regain their freedom.  Delays can also result in worse outcomes and increase collateral consequences of being incarcerated for long periods of time.

The Courts' Role in Reviewing Administrative Decisions

Judicial review is defined as the process by which courts examine the actions of the wings of government.  It also determines whether such actions are consistent with the U.S. Constitution.  The judicial review of agency action determines:

The authority of the agency

Compliance by the agency with appropriate procedural requirements

Whether an agency action is arbitrary, capricious, or an abuse of discretion

The APA provides for a comprehensive judicial review of agency actions.  Any person adversely affected or aggrieved by agency action is entitled to judicial review as long as the action is a final agency action for which there is no other adequate remedy in court.

Your Right of Judicial Review

As U.S. citizens, our Constitutional right of judicial review is one of our most essential rights.  Everyone deserves their day in court, but balancing fairness and efficiency is not always easy, and sometimes it is hard to get your case in front of a judge in a timely manner.  In other cases, administrative agencies can wield their regulatory power against you, making decisions that affect your rights through informal administrative proceedings without going through the courts.

In either case, it is critical to consult with a trusted attorney as soon as possible about your options.

I’m Rob Robinson and for over thirty years I’ve committed myself to ensuring that you have an opportunity to protect your rights in court.  I will offer you sound legal advice on how to proceed and give strategic advice to ensure that you attain the results you are looking for.  Many times, disputes may be resolved efficiently without going to court and incurring substantial legal expenses.

Please contact my office immediately for an evaluation of your case.

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