Due Process vs. the Administrative State: The Wall Against Bureaucratic Tyranny

Here is the due process story almost nobody is telling: the gravest threat to due process in America today is not a criminal defendant walking on a technicality. It is the administrative state quietly depriving citizens of liberty and property without ever going to a real court.

The Original Meaning of Due Process

Start with the original meaning. The phrase due process of law descends from Magna Carta's promise in 1215 that no free man may be deprived of his property or standing except by the lawful judgment of his equals or by the law of the land. By 1354, an English statute applied the same principle in unmistakable terms: no man shall be taken, imprisoned, or dispossessed without being brought to answer by due process of law. The American Founders embedded that guarantee in the Fifth and Fourteenth Amendments. To them, law of the land did not mean whatever a government official decides is fair. It meant the settled law of the land, known in advance, applied by independent courts, with the common-law protections of notice, a real judge, a jury where required, and a clear separation between prosecutor and judge.

To an originalist, due process is not an empty vessel for judges to pour policy preferences into. It is a set of procedural safeguards fixed by text and history. That is why Antonin Scalia insisted the Constitution is an enduring document, not a living one. If due process means whatever five justices say it means this decade, it protects nothing.

The Danger of Combined Powers

That separation is not a formality. James Madison wrote in Federalist No. 47 that the accumulation of legislative, executive, and judicial powers in the same hands may justly be pronounced the very definition of tyranny. Due process is the constitutional mechanism that prevents that accumulation. If the same branch can write the rule, accuse you of breaking it, and then judge your guilt, you do not have liberty. You have a master.

The early American experience put flesh on that principle. When British soldiers fired into a crowd in Boston in 1770, John Adams, a leading patriot, agreed to defend them in court. Not because he thought the soldiers were innocent, but because he believed the law had to protect even the despised if liberty was to mean anything. Due process is not a reward for the popular. It is a shield for the accused.

The Administrative State's Assault

Now look at the modern administrative state. An agency such as the SEC, the EPA, the IRS, or the FTC writes a rule, investigates an alleged violation, and then holds a hearing before an administrative law judge who is an employee of that same agency. There is often no jury. The rules of evidence are relaxed. The agency's own guidance documents and internal manuals are treated as binding law. The accused faces not a neutral magistrate but a bureaucrat whose employer has already decided he is worth prosecuting.

This is not due process. It is the Star Chamber with a nicer waiting room.

The problem is not limited to securities fraud. Consider the ordinary landowner. The EPA can determine that a low spot in his field is a wetland under the Clean Water Act and issue a compliance order demanding he stop farming and restore the land. The initial determination is made by agency personnel, often based on agency guidance, and the threat of fines begins before any independent judge reviews the merits. Even when judicial review is eventually available, the landowner has already spent months or years fighting a presumption created by the same agency that will judge the enforcement action. That is the very combination of powers Madison warned against.

Or take the Federal Trade Commission. For decades, the FTC has been empowered to punish businesses for unfair or deceptive acts or practices. Those words are not defined by Congress with any precision. The agency fills in the meaning through internal policy statements, then applies that meaning in cases where its own administrative judges decide guilt. A small business owner cannot know with confidence what conduct is forbidden until the FTC tells him he has done it. Friedrich Hayek saw this coming. He argued in The Road to Serfdom that the rule of law requires laws to be fixed, known, and applied by independent judges. A free people are governed by rules they can understand and obey, not by the unpredictable will of officials.

Incentives and the Knowledge Problem

Hayek also identified the knowledge problem that plagues all central planning. No central body can write specific rules for every transaction across a continental economy, so agencies fall back on vague standards. That vagueness then becomes a weapon in the hands of the prosecutor. An agency cannot gather the dispersed knowledge that millions of individuals use in their daily decisions, so it governs by broad mandates and fills in the details through enforcement discretion. That inverts the rule of law. The citizen discovers the rule only after he is accused.

There is also an incentives problem, and Thomas Sowell's constrained vision applies perfectly. Human nature does not change just because an official has good intentions. When an agency's budget, prestige, and legislative support depend on enforcement numbers, its in-house judges face an impossible conflict of interest. No one should be surprised that agency courts rule overwhelmingly for the agency. The fix is not to hire more ethical bureaucrats. The fix is to remove the judicial function from the prosecutor. The Founders separated powers precisely because they did not trust concentrated power, even in the hands of well-meaning people.

The Supreme Court recently drew one meaningful line. In SEC v. Jarkesy, decided in 2024, the Court held that the SEC cannot impose civil penalties through its in-house tribunal without a jury. That was a real win. The Court also finally buried Chevron deference in Loper Bright Enterprises v. Raimondo, restoring the principle that courts, not agencies, interpret statutes. But both decisions leave untouched the vast universe of agency adjudication, from licenses and benefits to fines and property seizures, where the agency still acts as prosecutor, judge, and executioner in a single proceeding.

Civil asset forfeiture is a related due process scandal. Police can seize cash or cars on mere suspicion that property was involved in a crime. The owner is not convicted of anything. In many cases no criminal charges are ever filed. Yet to get his property back, the owner must file a lawsuit and prove his own innocence. That inverts the most basic premise of due process: the government should bear the burden of proof before it takes what is yours. Due process means the state must prove its case, not that you must prove your property's innocence.

Restoring the Boundary

Restoring due process requires clear structural changes. The first is that any government action that deprives a person of life, liberty, or property should be adjudicated in a genuine Article III court with an independent judge and, where the Constitution requires, a jury. The second is that agencies must never act as both prosecutor and judge in the same case. The third is that before the state punishes, the rule must be public, clear, and prospective, written down and knowable in advance. The fourth is that Congress must stop delegating its lawmaking power to agencies that then enforce their own commands.

None of this is a defense of wrongdoers. It is a defense of the rule of law. When the government can punish you under rules you could not have known, in a forum it controls, before a judge it employs, you have no rights, only permissions that can be revoked. That is what due process was designed to prevent.

The fight over due process is not a technical legal skirmish. It is the central fight over whether America remains a constitutional republic or becomes a bureaucratic state. The Founders gave us a government of laws, not of men. The administrative state has spent decades trying to reverse that sentence. Restoring due process means restoring the original boundary: no punishment without law, and no judgment without an independent court.