Due Process, Free Expression, and the Administrative State

Abstract

The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.