Michigan Law
The US Supreme Court has upended the traditional understanding of substantive due process in recent rulings, Professor Leah Litman argues in a new paper.
While the court has undercut the idea of substantive due process in regards to abortion and other longstanding individual rights, it has not abandoned the concept entirely, Litman writes in the Texas Law Review.
Rather, the court has seemingly stopped using the concept for the traditional individual rights line of cases while newly applying it elsewhere.
“Substantive due process is the idea that the Constitution protects certain rights that are not explicitly or specifically mentioned in its text, but they are a component of the liberty that is protected by the due process clause,” Litman explained.
In addition to abortion, it has been applied to things like criminalizing contraception or intimate relationships between adults.
“Substantive due process decisions largely prohibit the government from doing certain things,” Litman wrote in her new article. These are distinct from procedural due process decisions, which “require the government to adopt certain procedures before acting.”
In the Dobbs decision that overturned Roe v. Wade and in others, the court has been hostile to the longtime understanding of substantive due process—while at the same time extending the concept to new areas, Litman wrote.
She recently answered five questions about the issues raised in her article:
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They have taken the idea that the Constitution protects certain rights—that aren’t explicitly mentioned in the text—because they are essential to liberty, and they have used that to fashion rules about how administrative agencies and the administrative states can function.
They’ve said that if Congress structures administrative agencies in ways that the Supreme Court justices think are bad for liberty, the justices will strike them down—even though liberty is not an explicit or specific constitutional constraint on Congress’s ability to structure agencies.
So they’ve taken this amorphous idea of liberty and the idea that judges get to specify the core components of liberty, and instead of using it to protect individual rights against state laws that restrict abortion or bodily autonomy, they use it to limit how Congress can structure administrative agencies.
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The first big area is the law of presidential removal or officer removal. This refers to when Congress can make the heads of agencies like the Environmental Protection
Agency or the Federal Trade Commission somewhat insulated from presidential removal. Basically, Congress says that the agency head can’t be removed just because the president wants someone in there who’s going to fulfill their policy wishes.
The second big area is the law regarding administrative adjudications—the court-like aspect of administrative agencies. Many agencies have administrative law judges within them, and those judges will hear claims about whether the federal statutes that those agencies administer have been violated. It’s a question of whether Congress can allow certain federal claims to be heard in administrative tribunals.
The court has relied on this liberty-esque idea of the separation of power to limit Congress in these areas.
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During the initial weeks of the Trump administration, we began to see some of the consequences of allowing presidents to just wholly replace at will wide swaths of the federal bureaucracy.
Insulating certain officers from presidential removal was a way of ensuring some continuity across administrations, ensuring that certain laws were going to be enforced across administrations, and ensuring some expertise and independence within the government. The Supreme Court’s decisions, which are effectively requiring presidents to have near-plenary control over agency heads, are jeopardizing that.
Indeed, the Trump administration has vowed to ask the Supreme Court to take the next step and declare that no agency can be independent from the president—that it can’t be led by anyone who is insulated from presidential removal.
The consequences of that are quite profound.
On a more general level, the court is seizing for itself the ability to design how our government functions, how administrative agencies work—but it, of course, is the less democratically accountable branch of government.
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At times, the court seems to be of the view that it has to restrain the government’s power in order to protect liberty. The idea being that if administrators, agencies, and federal officials can do things and impose regulations, that is bad for liberty.
But at the same time, the court’s decisions have empowered another part of the federal government—giving the president more power to direct how these agencies function. It’s somewhat internally inconsistent on whether liberty is going to do better or going to do worse in a world with more or less government power.
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I already mentioned that the Trump administration has said they will not defend the constitutionality of independent agency heads. I think that is where the court is probably going to go.
There’s also a possibility that the court will go deeper into the administrative state—whether more civil servants can be independent and whether Congress can effectively create a civil service based on merit rather than partisan and ideological considerations.
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