Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process

60 Fla. L. Rev. 519 (2008) | | | |

ABSTRACT :: Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” The Court has recognized substantive due process limitations on law-enforcement personnel, public-school officials, government employers, and those who render decisions that affect our property rights. Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary to the guarantee of substantive due process.

A burgeoning body of case law, however, has limited substantive due process as a viable restraint on the conduct of officials in the executive branch of government. Some appellate courts have restricted substantive due process to claims involving deprivation of a fundamental right. Others have rejected all claims where only deprivation of property is at stake, or they have dismissed such claims where state law provides a remedy, thus confounding the treatment of procedural and substantive due process claims. Further, the courts have narrowly defined the concept of a duty of care to immunize raw abuses of executive power.

This Article asserts that substantive due process should be recognized as a meaningful limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries and increasing hurdles imposed by state tort law. The Article summarizes the origins and development of substantive due process in the Supreme Court as a limitation on legislative, judicial, and executive power. It then critiques the positions adopted by federal appellate courts regarding substantive due process as a limitation on executive power. It addresses separation of powers and federalism concerns that have been used to justify a crabbed interpretation of substantive due process. Finally, the Article suggests ways for attorneys litigating on behalf of government employees, arrestees and detainees, students, and landowners to invoke substantive due process as a meaningful restraint against misuse of executive power.

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