Standing doctrine's state action problem.

• Author: Davis, Seth
• Position: III. Government Standing and Constitutional Accountability C. Explaining Why Government Standing Must Be Constitutionally Accountable 2. Due Process through Conclusion, with footnotes, p. 615-648

2. Due Process

   Just as due process is a "potential limit on the private exercise of regulatory power," (173) it is also a potential limit on the private exercise of the power of government standing. Due process prohibits a deprivation of life, liberty, or property except in accordance with law. (174) The Founders linked this due process guarantee with structural values. Nathan Chapman and Michael McConnell explain that early court decisions applying due process to legislative acts "were consistently based on [a combined] ... separation-of-powers and due process logic." (175) On this logic, " [legislative acts violated due process [when] ... they exercised judicial power or abrogated common law procedural protections." (176) Thus, a due process violation could inhere in an improperly structured delegation of authority. (177) A similar structural link between due process and delegation, Ann Woolhandler has argued, existed from the Reconstruction until the New Deal. (178) In this vein, in Yick Wo v. Hopkins the Court struck down under the Due Process Clause a standardless delegation of authority to city officials, who were free to discriminate against Chinese-Americans when deciding whether to grant permits to operate laundries. (179) Liberal democracies demand that government action be based upon public reasons, not raw preferences, or what Yick Wo called "the play and action of purely personal and arbitrary power." (180) Eventually this under standing of due process expanded to include substantive review of legislative action. (181)

   According to the Court's contemporary gloss, the Due Process Clauses aim at a "scheme of ordered liberty" and a "fair and enlightened system of justice" that are "rooted in the traditions and conscience of our people." (182) These traditions recognize "the basic unfairness of depriving citizens of life, liberty, or property, through the application ... of arbitrary coercion." (183)

   a. Arbitrary Enforcement

   This concern with arbitrary coercion arises across an array of due process doctrines that impose limits upon substantive law and enforcement design, including the private nondelegation doctrine already discussed (184) and doctrines that address criminal law and procedure as well as civil procedure and remedies.

   i. Criminal Law and Procedure

   In Oyler v. Boles, the Court held that due process precludes a prosecutor from prosecuting an individual based upon "an unjustifiable standard such as race, religion, or other arbitrary classification." (185) Selective prosecution may violate due process where the prosecutor singles out a defendant for his exercise of another constitutionally protected right, such as the right to free speech, (186) where there is evidence of arbitrary prosecutorial policies, (187) or where a prosecutor makes a charging decision out of personal vindictiveness. (188) Indeed, even the "potential for vindictiveness" may violate due process. (189)

   Due process does not, however, entail reasonableness review of every prosecutorial decision. Federal courts are reluctant to police prosecutorial discretion in the ordinary course, reasoning "that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." (190) In United States v. Armstrong, the Court held that if the prosecutor has probable cause to charge, the decision to do so (or not) "generally rests entirely in his discretion." (191) It thus falls to structural constraints on prosecutorial discretion and subconstitutional law prophylactically to address the risk of arbitrary enforcement by public prosecutors.

   Some structural checks on arbitrary prosecutions stem from the Due Process Clause itself. The Court's void-for-vagueness cases explain that a constitutional concern with arbitrary enforcement is "basic," (192) deeply rooted,193 and cuts across the usual conceptual division between structure and rights. In Kolender v. Lawson, the Court located the void-for-vagueness doctrine in due process, requiring legislatures to notify an "ordinary" person "what conduct is prohibited" and to discourage "arbitrary and discriminatory enforcement." (194) At the same time, the Court reasoned that the doctrine does not focus upon actual notice to individuals, but rather upon the structural requirement "that a legislature establish minimal guidelines to govern law enforcement." (195) Without sufficient structural constraints, the Court explained, there is a constitutionally unacceptable risk that policemen, prosecutors, and jurors will enforce the law based upon "their personal predilections" (196) rather than public reasons. (197)

   ii. Civil Procedure and Remedies

   The due process concern for arbitrary enforcement appears not only in criminal procedure, but also in the law of civil remedies. In Marshall v. Jerrico, Inc., for example, the Court considered whether, under the Due Process Clause, there was an "impermissible risk of bias" in the Fair Labor Standards Act's enforcement scheme. (198) Under the FLSA, civil penalty awards went to the coffers of the Department of Labor, the agency tasked with enforcing the Act. Due process prohibits, the Court had earlier held, biased adjudication by requiring "an impartial and disinterested tribunal." (199) This prophylactic rule, the Court explained, mitigates the risk of actual bias in a particular proceeding. (200) But, the Court found, the risk of bias in Jerrico did not offend due process because it was "exceptionally remote," not least because no agency official's salary depended upon civil penalties. (201) Though making clear that prosecutors are not subject to "strict requirements of neutrality," the Court also explained that "[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions" under the Due Process Clause. (202)

   Fuentes v. Shevin provides an example of an enforcement scheme with fatal constitutional flaws. (203) Florida and Pennsylvania had authorized private citizens to order state agents to seize personal property based upon nothing more than an ex parte application claiming a right to the property and the posting of a security bond. (204) Merchants in both states used this authority to seize stoves, stereos, beds, tables, and the like from consumers who had purchased goods under installment sales contracts. (205) The Court struck down the enforcement scheme, holding that a state may not permit " [p]rivate parties, serving their own private advantage, ... unilaterally [to] invoke state power to replevy goods from another" without a "fair prior hearing." (206)

   Due process, the Court has held, limits the size of punitive damage awards so that they "are not imposed in an arbitrary manner." (207) Here, as elsewhere, the Due Process Clause draws a distinction between public reasons and raw preferences in the enforcement of law, requiring "[e]xacting" judicial review to reduce the risk of a deprivation of property based upon a "decisionmaker's caprice." (208) Farther afield, but still instructive, are the due process restrictions upon personal jurisdiction, which require that the defendant have "sufficient contacts or ties with the state of the forum to make it reasonable and just" for the plaintiff to haul her into court there. (209)

   b. The Right to One's Day in Court

   Due process protects not only defendants in enforcement actions, but also third parties whose rights may be at issue in the case. The Supreme Court has described a "deep-rooted historic tradition that everyone should have his own day in court." (210) This tradition treats a right of action as a "constitutionally recognized property interest" protected by due process. (211)

   By recognizing a property interest in a right of action, due process jurisprudence protects an "individual litigant's autonomy in deciding whether to pursue her claim and if so, how best to conduct that litigation." (212) This property interest includes both the right to sue and the "right not to sue," (213) which, taken together, form the right to determine whether one's rights will be vindicated in court. This due process concern has surfaced in the backdrop of government standing decisions. For example, in Director, Office of Workers ' Compensation Programs, Department of Labor v. Newport News Shipbuilding & Dry Dock Co., the Court explained that "[a]gencies do not automatically have standing to sue for actions that frustrate the purposes of their statutes." (214) The Interior Department, for instance, does not have standing "to bring a suit for assault when [a] camper [in a national park] declines to do so" even though the Department manages the national park system. (215)

   Like any other property right, the day-in-court right does not guarantee a rights-holder absolute control. (216) Indeed, the contours of the day-in-court right remain a matter of debate, particularly in negative-value and small claims cases where individual litigation is impracticable. (217) The "dominant" understanding requires courts to consider the due process right to one's day in court, but permits them "to trade off losses in litigant control against social gains (in particular, reductions in the expense of litigation)." (218)

   Even where the Constitution does not guarantee litigant autonomy, it protects a "right to adequate representation" when one's rights are litigated. (219) The foundational modern precedent is Hansberry v. Lee, which held that a class action may bind absent class members without violating the Due Process Clause if the members' interests were "in fact adequately represented by parties who [were] present [in the class action]." (220)

   Various procedural rules implement the day-in-court right. Among the most important are preclusion rules. Generally, a...