Undue process.

• Author: Samaha, Adam M.
• Position: Costs of government decision making

INTRODUCTION I. DECISION AND COST A. Nightmares 1. Stroud Township 2. Katrina and FEMA 3. Death row. 4. Filibusters 5. "Peanut butter" 6. Yucca Mountain B. Conceptual Introduction C. Working Definitions 1. Decision 2. Decision costs II. CONSTITUTIONAL READINGS A. The Whole Text 1. Focal points 2. Empirical inquiries B. The Parts Elaborated 1. Cross-cutting norms 2. Localized norms a. Positive lawmaking b. Criminal procedure and rights parasites c. Final judgments and litigation burdens d. Quasi-Mathews and substantive due process III. UNDUE PROCESS IN THEORY A. Constitutional Options B. Process Theories and Undue Process Policy 1. Rights retrofitted 2. Utilitarianism and rule of law C. Undue Process as Constitutional Law 1. Stories of systematic failure 2. Institutional choice and design D. Nightmares Relived 1. Plausible objections 2. Implausible objections CONCLUSION He has no equal on earth, being created without fear.... [O]f all the sons of pride he is the king. ([dagger])

But because he is mortal and subject to decay, as all other earthly creatures are.... I shall in the next following chapters speak of his diseases, and the causes of his mortality.... ([dagger])([dagger])

INTRODUCTION

Locating the law of due process is too easy. Our statutes, regulations, case reporters, and academic journals are packed with ideas about when government makes decisions too precipitously, or without adequate participation, or with insufficient assurance of accuracy. For example, the minimum process necessary for a lawful government decision under the Fifth and Fourteenth Amendments is a renowned feature of the U.S. Constitution. And its associated scholarship has an almost immeasurable scope. (1) Such inquiries are often connected to an attitude about government. They treat the state as a force to be feared and constrained, by process if nothing else. (2) On this view, the most valuable parts of the Constitution include its Due Process Clauses, preservation of habeas corpus, overlapping authority on matters of war and peace, and elaborate requirements for statute making and constitutional amendment. Among the heroic instances of judicial intervention are marquee cases like Gideon v. Wainwright, (3) Goldberg v. Kelly, (4) Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), (5) and Hamdan v. Rumsfeld. (6)

If you want to understand "undue process"--the point at which government decision making becomes too tardy, or too inclusive, or too careful as a matter of law--there is far less material competing for your attention. This is certainly true for constitutional law and theory. We do not have an integrated examination of the Constitution for the caps it places, and should place, on decision costs. Although the text seems to lack a crosscutting guarantee against undue process, certain lines of constitutional law do cabin government procedure. Animating their drive for recognition is a conviction that an efficacious and efficient state is necessary to successful social life: that "the vigor of government is essential to the security of liberty," not to mention other demands for social justice. (7) A vigorous state and sensible resource allocation are jeopardized by excessive hand-wringing, all-inclusive roundtable deliberation, and unrealistic hopes for perfection. On this view, we ought to cheer for arcane provisions like the default date for congressional assembly and the rules of presidential succession, (8) along with the Double Jeopardy, Speedy Trial, and Full Faith and Credit Clauses. (9) We should celebrate pitifully obscure decisions such as Hollingsworth v. Virginia, (10) Klopfer v. North Carolina, (11) and Plaut v. Spendthrift Farm, Inc. (12)

Even casual observers understand that government decision making can be too costly as a matter of ordinary policy. Opposition to excessive decision costs is shared by everyone from Ronald Dworkin and Richard Posner (13) to Charles Dickens and Franz Kafka. (14) Most of us already see that decision costs are as real as error costs, and that sometimes "the process is the punishment" (15) or "[j]ustice delayed is justice denied." (16) Anyone who forgot these lessons was reminded of them by the trial of Slobodan Milosevic and the relief effort following Hurricane Katrina. The international criminal proceedings against Milosevic lasted four years, cost perhaps tens of millions of dollars, and failed to reach judgment before the defendant died. (17) In New Orleans, the delays were much shorter yet still devastating. Thousands were stranded for days without food, shelter, or medical care. Many were in places accessible to the news media but not to relief workers operating within a confused and multi-layered decision structure. (18)

But is excessive process, like inadequate process, a constitutional problem in the United States? The best answer is awkward: the entire Federal Constitution is about reducing decision costs but most of its parts are not. As to the whole, the characterization does not rely on a deep theory about the proper substance of constitutional law. Like it or not, the text is a focal point that tends to confine the scope of disputes. (19) In fact, this is just about the only sound reason to pay attention to the text. Some empirical work in economics and political science, largely ignored in the law literature, suggests as much. (20) But the local picture is unlike the global view. In contrast with state constitutions inspired by the Magna Carta, (21) enforceable undue process norms are somewhat exceptional in federal constitutional law, whether we focus on plain text or judicial doctrine. Ordinarily the judiciary imposes procedural minima, not maxima, through its federal constitutional decisions.

The question is whether this state of affairs is defensible. Can judicially enforced and other due process norms comfortably coexist with the usual absence of undue process norms? There is room for debate on this point but the answer is likely no, as a matter of principle. The arguments are almost equally strong for generic, entrenched, judicially enforceable due process and undue process norms. The current tilt toward due process is probably an artifact of centralization fears in past generations--a slant that underestimates nonsalient process costs borne by the general public, along with the threat of a government that is crippled or that leverages its control over procedure to obtain submission or bribes. Furthermore, whatever hope or hesitation one should have about supreme judicial review in due process disputes largely carries over into undue process territory. Asking the judiciary to engineer "optimal process" through constitutional doctrine is imprudent, but a modest undue process norm would likely accomplish more good than harm. Like modern due process doctrine, the claim could incorporate deference to other officials and be fenced off from generally applicable rulemaking.

But the concrete issues are not about pure principle, nor are we faced with redrafting the Constitution. This restricts the scope of defensible undue process claims. Establishing a generic undue process norm might entail the kind of creativity that is disfavored by the decision-cost minimizing role of the existing text. Oddly, then, the one global element of federal constitutional law likely to reduce decision costs--fidelity to text as understood through some interpretive method--is the most important barrier to infusing undue process norms into every government operation. Indeed, the opportunity for judicial review itself tends to increase decision costs, which are not easily reduced by ready-made constitutional rules for this field.

The analysis below proceeds in three parts. Part I identifies several episodes in which government process arguably has run out of control, and it introduces connections and distinctions between due and undue process. The concepts of decision and decision costs are then specified. Part II searches federal constitutional law for its relationship to undue process. The connection is two-fold. First, the Constitution tends to cut decision costs insofar as it is a reference for dispute resolution. Contemporary empirical studies prompt the question whether constitutional law is capable of doing much else. Second, certain federal constitutional provisions and doctrines serve undue process missions. A potentially explosive phenomenon involves lower court extensions of Mathews v. Eldridge. (22) These cases intimate a federal undue process claim with a scope rivaling the area now reached by conventional due process doctrine, and they motivate much of the normative analysis in Part III. No one has presented a constitutional theory of undue process to date, (23) but certain due process theories can be retrofitted to provide guidance. The question of judicial review is also taken up in Part III. It concludes that neither theory nor practical issues of enforcement will easily distinguish due from undue process. They are global norms of approximately equal attractiveness. But textualism and incremental judicial reasoning can confine the latter without eliminating the former. Many undue process claims are self-defeating in a way that most due process claims are not. The closing sections of this Article isolate the most plausible undue process objections.

1. DECISION AND COST

   1. Nightmares

      1. Stroud Township

         Woodwind Estates, Ltd., wanted to build affordable subdivision housing in Stroud Township, Pennsylvania. It qualified for over one million dollars in low-income housing tax credits to do it. But the state agency administering the credits conditioned their use on the development being complete within about twenty-eight months. Some local politicians and residents had no interest in allowing the developer to meet that deadline or any other. They were concerned about "the socioeconomic background of prospective tenants." (24) This was not a reason for rejecting the...