Due process disaggregation.

• Author: Parkin, Jason
• Position: II. Between the "Generality of Cases" and the "Rare Exceptions": The Rise of Due Process Subgroups B. Defining and Classifying Due Process Subgroups through Conclusion, with footnotes, p. 309-333

2. Defining and Classifying Due Process Subgroups

   In an effort to better understand what makes a subgroup a subgroup, this Section offers a working definition and a typology of what this Article has been referring to as due process subgroups. Given the growing number of subgroup arguments and the wide range of legal contexts in which they are appearing, this effort is intended to distill the attributes that unite subgroups across legal contexts, distinguish subgroups from "the generality of cases" in a particular legal context, and explain what aspects of subgroups make them potentially entitled to additional or substitute procedures under the Due Process Clause.

   Due process subgroups can be defined rather simply: they are identifiable cohorts of individuals who, because of some distinguishing characteristic, may be entitled to additional or alternative procedural safeguards under the traditional Mathews due process analysis. The actual number of individuals who make up a subgroup will vary, but the size of the subgroup must be smaller than the "large majority" (151) or the "generality of cases" (152) yet larger than the "rare exceptions" (153) in the relevant context. Subgroup members must be linked together by a shared characteristic that creates procedural needs that differ from the needs of the "generality of cases." It is that distinguishing characteristic that creates the possibility that, under a Mathews analysis, the Due Process Clause will require procedural safeguards that differ from those available to all individuals in the context.

   At first glance, it may seem that subgroups merely represent ad hoc pleas for special treatment for particularly favored or vulnerable subsets of the population. Yet through a careful review of the recent wave of subgroup arguments, it is possible to sort subgroups according to the nature of the distinguishing characteristic that links the members of each subgroup. This sorting gives rise to three distinct categories: (1) subgroups composed of individuals who, due to their personal capacities and circumstances, are less able to use the available procedures; (2) subgroups composed of individuals who possess a stronger stake or interest in the proceedings; and (3) subgroups composed of individuals who are challenging a determination that is unusually complex or complicated. For each of these categories, the distinguishing characteristic creates procedural needs that are, by definition, not shared by the typical or average individual. Furthermore, because these distinguishing characteristics affect one or more of the Mathews factors, subgroups defined according to such characteristics raise questions about whether one-size-fits-all procedural safeguards satisfy the due process rights of subgroup members.

   1. The Capacities and Circumstances of Subgroup Members

      The first type of subgroup is composed of individuals who, due to their shared capacities and circumstances, are less able to use the available procedures than the rest of the individuals in a particular context. It is therefore reminiscent of the Supreme Court's pronouncement in Goldberg v. Kelly, later repeated in Mathews v. Eldridge, that "[t]he opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard." (154) Describing a category of subgroups in this manner is not to say that all members of such subgroups are by definition helpless or powerless; (155) rather, the key is that their capacities and circumstances place them at a disadvantage in comparison to the typical individual for whom the existing procedural safeguards were designed.

      The recent wave of subgroup arguments has identified numerous subgroups that are defined according to the shared capacities and circumstances of their members. Due process arguments made on behalf of individuals who suffer from mental disabilities or who lack mental competency are a prime example. These arguments, whether made in the context of immigration removal proceedings, (156) eviction proceedings, (157) or public benefit terminations, (158) all turn on the fact that these subgroup members, due to their shared capacities and circumstances, are unable or less able to use the available procedural safeguards. Arguments with respect to subgroups composed of minor children appearing in procedural settings designed for adults follow a similar pattern, (159) as do arguments on behalf of individuals with limited English proficiency. (160)

      Not all capacities and circumstances cut across different procedural regimes in the way that mental disabilities and lack of maturity do. Indeed, a subgroup may be defined by capacities and circumstances that are particular to a specific context. For example, in the context of welfare terminations, a subgroup could be composed of individuals who are subject to work requirements and, due to their employment, are unable to appear at a daytime hearing without jeopardizing their jobs. (161) Or, returning to the immigration context, a subgroup could consist of noncitizens who are held in immigration detention during the pendency of their removal proceedings, separated from the lawyers and evidence they need to defend against deportation. (162) Like the subgroups based on the trans-substantive capacities and circumstances identified above, members of context-specific subgroups share a characteristic that puts them on unequal footing when they attempt to use the available procedural safeguards.

      Whether subgroups of this type are entitled to anything other than the existing one-size-fits-all procedures will turn on the second and third Mathews factors. Subgroup members will need to be able to prove that their shared capacities and circumstances place them at greater "risk of an erroneous deprivation" and that "additional or substitute procedural safeguards" would reduce that risk. (163) They must also then demonstrate that the cost of providing such safeguards does not outweigh the other Mathews factors. (164) Only then will this type of due process subgroup overcome the Supreme Court's preference for uniform procedural rules.

   2. The Private Interest at Stake

      A second type of subgroup is composed of individuals who possess a stronger stake or interest in the proceedings than the typical individual. The private interest affected by a government action surely varies from person to person; after all, it would be difficult to imagine a constitutionally protected interest being of identical value to any two people. However, beyond such anticipated minor variations, there may be subgroups of individuals who share an interest in the proceedings that is demonstrably stronger than the interest at issue in the "generality of cases."

      Subgroups based on a heightened private interest can be found in a variety of contexts. In contested divorce proceedings, children may possess a greater private interest when there are allegations of child abuse than when there are no such allegations. (165) In school discipline proceedings, the private interest may be greater for students who will be subject to unusually severe corporal punishment (166) or criminal prosecution (167) for their alleged misbehavior. In immigration proceedings, lawful permanent residents and refugees may possess a stronger interest in remaining in the United States than noncitizens who lack similar ties, (168) or who do not fear death or persecution if forced to return to their home countries. (169)

      To obtain different procedural protections under the Due Process Clause, members of this type of subgroup must focus on the first factor of the Mathews test: "the private interest that will be affected by the official action." (170) Thus, these subgroup members will need to be able to establish that their private interest in the proceedings is, in fact, stronger than the private interest at stake in the "generality of cases." In addition, as with all subgroup types, to tip the Mathews balance in their favor, members of these subgroups will need to demonstrate that the cost of the additional procedural safeguards they seek does not outweigh the other two Mathews factors. (171)

   3. The Complexity of the Determination

      A third type of subgroup is composed of individuals who are challenging a determination that is unusually complex or complicated. This subgroup type is likely to appear in decisionmaking contexts in which the issues and determinations are straightforward in most, but not all, cases. A common distinction along these lines involves differences between determinations that hinge on issues of fact or law. Many factual issues--the who, what, when, and where of a past event--can seem relatively simple when compared to legal issues that involve complicated statutory or regulatory regimes. It is also possible that among the factual issues that arise in a particular context, some will be more complex than others, for example, issues that involve medical reports or expert testimony.

      Like the other two subgroup categories, subgroups based on the complexity of the determination arise in many different contexts. For example, efforts have been made to carve out subgroups of veterans' benefits cases involving post-traumatic stress disorder claims generally, (172) as well as a subset of claims related to military sexual trauma, (173) as those types of claims are significantly harder to prove, as a factual matter, than run-of-the-mill claims for veterans' benefits. Subgroups of complex cases have also been identified in the context of immigration removal proceedings. There, noncitizens facing removal based on prior criminal charges often must contend with "extraordinarily complicated legal issues," (174) in contrast with the "large majority" of noncriminal immigration proceedings that "involve much simpler deportability determinations: whether someone entered the country illegally or whether they have stayed beyond the period authorized upon admission." (175)...