What is procedural due process?

Procedural due process is the constitutional requirement that government provide fair processes in legal proceedings before depriving anyone of life, liberty, or property. The doctrine flows from the Due Process Clauses of the Fifth Amendment, which binds the federal government, and the Fourteenth Amendment, which binds the states. Procedural due process focuses on how the government acts rather than on what it does. Even a constitutional substantive law must be applied through fair procedures.

The core elements of procedural due process include notice of the charges or government action, an opportunity to be heard at a meaningful time and in a meaningful manner, a neutral decision maker, the chance to challenge adverse evidence and present favorable evidence, and a written statement of reasons for the decision. The Supreme Court announced the standard balancing test in Mathews v. Eldridge (1976): courts weigh the private interest affected by the official action; the risk of erroneous deprivation under the procedures used and the probable value of additional or substitute procedural safeguards; and the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

The doctrine applies in many settings. Goldberg v. Kelly (1970) required pre-termination evidentiary hearings before a state could cut off welfare benefits. Cleveland Board of Education v. Loudermill (1985) required notice and an opportunity to respond before termination of tenured public employees. Wolff v. McDonnell (1974) required disciplinary hearings for prison inmates with notice, a chance to call witnesses, and a written statement of reasons. Goss v. Lopez (1975) required notice and an informal hearing before a public school could suspend a student for ten days or more. Vitek v. Jones (1980) required formal hearings before a state could transfer prisoners to mental institutions. Mathews v. Eldridge itself addressed Social Security disability benefits and concluded that pre-termination evidentiary hearings were not required because the existing review procedures were adequate.

Procedural due process protects more than criminal defendants. It applies whenever government takes action that deprives a person of a constitutionally protected interest, including welfare benefits, public employment, public education in some circumstances, professional licenses, and parental rights. The level of process required varies with the importance of the interest, the risk of error, and the burden on government. Naturalization candidates should know procedural due process as the constitutional guarantee that government must follow fair procedures, an idea with roots in the 1215 Magna Carta promise of judgment by the law of the land.