The Separation of Powers: {Explained}

III. Why Due Process of Law Is a Necessary Constraint on the Regulatory State

The Problem

What happens without due process of law?

It is fundamentally wrong for the government to take your life, liberty, or property unless it fairly demonstrates that you have done something unlawful. The process provided matters as much as the quantity or quality of the government’s proof. From popular movies, books, and television programs, crime drama fans know many of the steps the police and prosecutors must follow to successfully arrest and convict a criminal defendant. In the civil justice system, the penalties are generally less severe. But the same general principle applies—the government must prove its case, in a court of law, with fair procedures before it may lawfully deprive you of your life, liberty, or property.

These due process of law principles have a long history in the Anglo-American judicial system, traceable back to at least 1215, when a group of English barons rebelled against King John’s abuses. The Magna Carta—“Great Charter”—ended the rebellion by guaranteeing certain basic liberties. Its Clause 39 has been recognized as the most important predecessor of modern due process doctrine, providing that “No free-man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Further, as Professors Nathan S. Chapman and Michael W. McConnell explain, the meaning of “due process of law” was “driven . . . by the increasing separation of lawmaking from law enforcing and law interpreting.” From “at least the middle of the fourteenth century,” due process of law “consistently referred to the guarantee of legal judgment in a case by an authorized court in accordance with settled law. It entailed an exercise of what came to be known as the judicial power to interpret and apply standing law to a specific legal dispute.” In short, the government’s deprivation of private rights is legitimate only if “preceded by certain procedural protections characteristic of judicial process.” Codifying these rule-of-law principles imported from English law, our Constitution guarantees due process of law.

Although many of the cases interpreting this guarantee have been about due process of law in court, due process principles also apply to the executive branch’s law enforcement actions. As the regulatory state—the portion of the executive branch charged with regulating private parties’ conduct—has grown, the problem of the executive branch failing to respect due process of law has increased in tandem.

A constellation of distinct but interrelated due process deficits has arisen as the regulatory state has grown larger and gradually supplanted the courts’ traditional role in resolving disputes. Among the most important of these deficits are lack of notice to the affected persons, delay or denial of access to court, lack of impartial adjudicators, agency failure to respond promptly to allegations of wrongdoing, disproportionate and unfair penalties, and lack of democratic accountability.

  1. Lack of Notice and Delay or Denial of Access to Court

Agency resolution of disputes is purportedly less formal, quicker, and cheaper than litigation and thus attractive to the government and regulated parties. But all too often agencies take advantage of relaxed procedural standards, established by the agencies themselves, to trammel the rights of private parties who are trapped in administrative limbo and prohibited from seeking review in a court of law until all administrative proceedings have been exhausted.

One of the most basic due process protections is that liability for wrongdoing should be imposed only after notice and a fair opportunity to respond. Consider the abuse of this principle in the case of PLF clients Mike and Chantell Sackett. They wanted to build their dream house on what the EPA asserted was a federally protected wetland. The Sacketts were baffled as to why they received a compliance order out of the blue to cease construction on their lot and restore the building site to its original condition. Their lot was in a residential subdivision, where most of their neighbors’ properties were not designated wetlands. Nor did their property have any direct connection to any body of water. Yet the EPA provided them with no notice of violation and no opportunity to contest the designation. The Supreme Court reversed the government’s position 9–0, securing the Sacketts’ right to contest the EPA’s determination in federal court. Nonetheless, it remains troubling that the Sacketts were denied a fair or reasonable opportunity to be heard by the agency before it issued a coercive (and wrongheaded) compliance order.

  1. Lack of Impartial Adjudicators

Imagine a criminal trial where the prosecutor was also the judge. It is easy to understand why such a proceeding would be unfair. Traditional rules of due process of law and judicial ethics exist to ensure a judge’s impartiality and independence. Yet in many agency proceedings, that presumption is flipped on its head. The agency officials in charge of adjudicating cases (the judges) are not independent from enforcement staff (the prosecutors). Instead, the “judges” are full-time employees of the regulatory agency, sometimes with investigative or enforcement responsibilities. They have natural biases toward preserving their agency’s powers and assume all those being investigated are scofflaws. Agency proceedings unsurprisingly are biased in the agency’s favor.

  1. Failure to Respond to Allegations of Wrongdoing Promptly

Although agencies are in theory supposed to be capable of resolving disputes more quickly than courts, all too often they fail to resolve allegations of wrongdoing promptly. Take the case of John Duarte, a fourth generation farmer who was investigated by the Army Corps of Engineers for having vernal pools (essentially large puddles) on his land. An observer from the Army Corps observed Duarte’s employee not plowing around the vernal pools as he was supposed to do. Instead of pointing out the error immediately, the Army Corps did not inform Duarte of this supposed violation of the Clean Water Act until two weeks later, when his seasonal plowing was already almost done and any opportunity to protect the supposedly vulnerable pools had passed. Because of the Army Corps’s two-week delay, fines had steadily been accumulating before Duarte was notified of any possible problem. It appeared as though the Corps cared more about collecting significant fines than about actually protecting the environment.

  1. Disproportionate and Unfair Penalties

Though fines may sometimes be appropriate to settle a matter, agencies routinely have abused this authority by imposing crushing, runaway fines disproportionate to any alleged wrong. Broad interpretations of the Clean Water Act and other environmental statutes mean that property owners are surprised to learn that what they regarded as innocuous conduct can make them targets of enforcement action. Take the case of Joe Robertson, the owner of a small Montana property, who built ponds in the path of a small mountain water channel to protect his land from forest fires. The EPA declared that channel a “navigable water” regulated by the Clean Water Act, despite the channel holding the volume comparable to a couple of garden hoses and being 40 miles away from the nearest actually navigable water. The government nonetheless zealously pursued its case against Robertson, and he was sent to prison for 18 months and ordered to pay $130,000 in restitution.

To avoid disproportionate outcomes like that in Robertson’s case, agencies should declare by regulation that, for a criminal prosecution or a civil penalty greater than $5,000 to be threatened or imposed, the offending conduct must have been deliberate and specifically directed at the prohibited outcome. Because overly broad interpretations of the Clean Water Act have been a common source of due process abuse, the EPA should clarify that for large penalties to be sought under this statute, the offending conduct must constitute a common law (public or private) nuisance. If the nuisance standard is not met, the EPA should limit itself to minor financial penalties or remedial orders to stop or alter existing conduct.

  1. Lack of Democratic Accountability

Finally, agencies must be accountable for their administrative enforcement decisions. Agencies must not authorize unaccountable lower-level civil servants to issue rules that bind the public and thereby deny the public scrutiny and accountability our Constitution demands.

The Solutions

What are the solutions to restore the separation of powers?

Arbitrary and unfair agency actions should be challenged in court and subject to de novo review. PLF has already won important victories in this area, including Sackett v. EPA (lack of fair notice, unreasonable penalties threatened, delayed access to courts) and Johnson v. EPA (unreasonable penalties, unfair rules of evidence).

Reforms within the executive branch: President Trump issued a Regulatory Bill of Rights Executive Order that set forth 10 important due process principles and commanded agencies to take steps to make certain that these due process rights were respected. Unfortunately, President Biden withdrew that executive order. It should be reinstated. Due process is a fundamental principle of law, not a partisan issue.

Agencies should promulgate rules to improve democratic accountability requiring rules to be promulgated only by presidentially appointed and Senate confirmed appointees. During the Trump Administration, the Department of Health and Human Services withdrew all authorizations for agency employees to issue regulations, but the agency reverted to its old practice under the Biden Administration.

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PLF is a national nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. We sue the government in court when our clients’ rights protected by the Constitution are violated, and advocate for legislative and regulatory reforms in the other branches of government. Started in 1973 in California, PLF now seeks reform across the country, including suits filed nationwide, scoring precedent-setting victories for our clients, with an unmatched track record at the United States Supreme Court.