Marbury's Unfulfilled Promise: Government Benefits and the Rule of Law

Abstract

Given the centrality of rule of law principles to the constitutional order, we have never been entirely comfortable with current legal doctrines which leave basic rule of law safeguards for government benefits, such as welfare, licensing, and government employment, dependent upon legislative or administrative discretion, just because the interest at issue is a governmentally created one. Under current doctrines, a legislature can preclude the application of the Due Process Clause by declining to create an entitlement to a government benefit and, under the Court's current Article III jurisprudence, it can foreclose judicial review of administrative benefit decisions, except perhaps for constitutional issues. An extensive historical analysis of both due process and judicial review doctrine reveals that the contingent character of current rule of law jurisprudence results from the Supreme Court's relatively recent decision to adopt a rights-based approach to rule of law rather than a duty-based approach which is also suggested in many of the Court's earlier decisions.

A duty-based approach reflects the Hohfeldian nature of duties as the counterpart of legal rights. This duality would permit courts to separate the analysis of whether a person has a substantive right to a given interest from the analysis of whether the government's treatment of that interest is subject to legal standards that public officials have a duty to observe. Under a duty-based approach, it is the presence of a legal duty that triggers the application of due process and the availability of judicial review. The duty-based approach eliminates the current contingent nature of rule of law because it requires rule of law protections whenever government officials are subject to legal standards and requires legislatures to establish such legal standards except where the Constitution permits standardless political discretion. Further, because due process and Article III judicial review are both necessary to ensuring that government officials obey applicable legal standards, both are constitutionally mandated. Nevertheless, while the duty-based approach creates a more stable constitutional foundation for rule, it does not require wholesale changes in current practice or wholesale rejection of historical precedents.