Due Process Disaggregation

ABSTRACT One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on "the generality of cases, not the rare exceptions. " A more granular approach to due process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an undue administrative and financial burden on the government. This aspect of procedural due process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between "the generality of cases" and "the rare exceptions" has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether due to subgroup members' capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of due process, it is time to move beyond the Court's narrow focus on "the generality of cases" and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as "rare exceptions" unworthy of procedural accommodation, courts should evaluate the due process rights of subgroups under the traditional Mathews balancing test. This refinement of due process doctrine is necessary to ensure that members of due process subgroups-and not just average or typical individuals--are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause. INTRODUCTION Determining the procedures required by the Due Process Clause is a deceptively simple task. The Supreme Court provided the instructions in 1976, when it adopted a three-factor balancing test in Mathews v. Eldridge. (1) Since then, courts have weighed the Mathews factors to specify which procedural safeguards satisfy due process in contexts ranging from deprivations of government benefits (2) and terminations of parental rights, (3) to deportations of noncitizens (4) and involuntary civil commitments to mental hospitals. (5) Yet the Supreme Court and lower courts have never fully answered one of the most basic questions related to due process: In each context, for whom should due process procedures be designed? In other words, does the Due Process Clause merely require that a procedural regime meet the needs of the average or typical person using the procedures, or is some additional tailoring required for people whose procedural needs are quite different from those of the majority? On the few occasions when the Supreme Court has commented on this aspect of due process, it has suggested a choice between extremes: either due process requires one-size-fits-all procedures designed for the average or typical person in a particular context, or due process requires procedures that are determined on a case-by-case basis. (6) The Court made its preference clear in Mathews, when it explained that due process rules must be targeted to "the generality of cases, not the rare exceptions." (7) Indeed, in almost every case since Mathews, the Court has interpreted the Due Process Clause to require uniform procedural rules even for plaintiffs whose situations were extreme or unusual in tangible ways. …