What’s procedural due process?

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Procedural due process refers to the system or method a government uses to determine whether it should take an action that would deprive a person of life, liberty, or property. These rights are granted to individuals in the United States and include the right to notice, the right to a hearing before an impartial decision maker, and the opportunity to object. These procedural rights help protect a person from arbitrary government action. Procedural due process will vary according to jurisdiction and the interest at stake. For example, a government will likely offer more procedural protections to a person whose liberty is at stake than to someone who may lose their driver’s license.

In the United States, the government weighs the interest of the individual, the procedural safeguards designed to protect that interest, and the cost to the government. This is why the process the government uses to take certain actions against people will vary. For example, a person who gets disability benefits from the government may lose those benefits without the government granting him or her a hearing before being fired. The person can appeal the decision and have the decision reversed, but the government is not obligated to provide a hearing before disability benefits cease because US courts have ruled that disability benefits are not need-based. Conversely, a person receiving benefits is entitled to a hearing before benefits cease because benefits are based on need.

In the United States, procedural due process derives from the Fifth Amendment and Fourteenth Amendment to the United States Constitution. The Fifth Amendment protects people from the actions of the federal government. The 14th Amendment applies to a state government action against a person. Each state will also have its own state constitution which will provide procedural guarantees to the people. The due process afforded by state constitutions may provide greater protection to an individual than the United States constitution, depending on how state courts interpret and apply those provisions.

Procedural due process is different from substantive due process. Procedural due process is about how the government tries to enforce its laws. Substantive due process is about the law itself. This means that a court will look into a particular law enacted by the legislature and decide whether that law violates the Constitution. With due process procedural questions, the court examines the mechanisms or methods that the government is using to enforce a law on a particular person.

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