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Berger on the Shocks-the-Conscience Test for Executive Violations of Due Process

By Lawrence Solum

Rosalie Berger Levinson (Valparaiso University - Law School) has posted Time to Bury the Shocks-the-Conscience Test (Chapman Law Review, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court has acknowledged that "the Due Process Clause, like its forebear in the Magna Carta, was ?intended to secure the individual from the arbitrary exercise of the powers of government? ... to prevent governmental power from being ?used for purposes of oppression.?" However, in County of Sacramento v. Lewis, the Court emasculated its efficacy as a limitation on executive power by holding that, whereas legislative enactments are subject to varying levels of scrutiny depending on the nature of the rights at stake, only the most egregious executive misconduct, that which "shocks the conscience," will be actionable. Lewis has created significant confusion and division in the appellate courts, severely restricting the ability of detainees, students, government employees, and landowners, to bring substantive due process challenges to the arbitrary exercise of executive power.

The thesis of this Article is that the "shocks-the-conscience" test should be rejected. First, it is historically untenable. Second, it rests on shaky precedent and has not been consistently adhered to by the Supreme Court in subsequent cases. Third, the concern cited by the Court to justify a more stringent standard for executive action ? fear of converting § 1983 substantive due process claims into a "font of tort law" ? is unfounded and exaggerated. Fourth, the numerous circuit conflicts demonstrate that the test has proven to be an unworkable analytical tool. To replace Lewis, this Article proposes a new test with specific criteria, extrapolated from various Supreme Court and appellate court decisions, to guide courts in determining when government misconduct should be viewed as an unconstitutional abuse of power.

Full post as published by Legal Theory Blog on February 23, 2010 (boomark / email).