chapter  Eleven
16 Pages

Procedural Due Process

WithMichael D. Bayles

The burden of the legislative/adjudicative distinction is that due process applies only to adjudicative decisions. The due process clauses apply if the state adversely affects certain interests, namely, those to life, liberty, or property. The government has a total monopoly, so due process should apply even to benefit-conferring decisions concerning such licenses. Due process applies when an additional deprivation not authorized by a previous procedure is to be imposed. Procedural requirements are a matter of federal law and thus not restricted by state law. Generally, burden-imposing and many benefit-terminating decisions involve deprivations and due process applies; burden-relieving and benefit conferring decisions do not risk deprivation and due process does not apply. Before deprivation can be analyzed, distinctions need to be made between burden-imposing, benefit-conferring, benefit-terminating, and burden-relieving decisions. A typical, uncontroversial burden-imposing decision is one to punish an individual for commission of a crime.