| dc.description.abstract | Under the Supreme Court's current due process jurisprudence, due process applies only when government actors deprive a person of a protected interest in life, liberty, or property, and government benefits are property only when has an entitlement to the benefit. Thus, Congress or a state legislature can preclude the application of the Due Process Clause simply by declining to create an entitlement to a government benefit. Given the centrality of rule of law principles to the constitutional order, it is disquieting that such a basic rule of law safeguard as due process is dependent upon political discretion, just because the interest at issue is a governmentally created one.
Early due process decisions suggest an alternative approach to due process that has the potential to solve the seemingly intractable dilemma of how to extend due process to government benefit decisions without implicating a substantive constitutional right to them. This approach, which we call the standards-based approach, encompasses two fundamental principles. First, the Constitution requires due process whenever the allocation of government benefits is constrained by legal standards whether or not there is a legal entitlement to the benefit, although the scope of procedural requirements will vary with the nature of the decision and the interest involved. Second, the legislature may decide whether or not to provide government benefits, but once it chooses to provide benefits, it is constitutionally compelled by the rule of law to provide statutory standards for the allocation of those benefits, except in limited circumstances controlled by the political question doctrine.
The standards-based approach provides solid constitutional foundations for the rule of law. Except in narrow areas where the Constitution permits standardless political discretion, governmental regularity requires legal standards that guide and control the execution of the law. Once legal standards are in place, it is the duty of all government officials to comply with them, regardless of the character of the right at issue. Due process is a crucial constitutional mechanism for ensuring compliance with legal standards and therefore should apply whenever there are legal standards. | |
