Fifth Amendment — Substantive Due Process and the Federal Government

Amdt5.7.1 Overview of Substantive Due Process Requirements

The Supreme Court has interpreted the Fifth and Fourteenth Amendments’ Due Process Clauses—which prohibit the government from depriving any person of “life, liberty, or property, without due process of law”—to protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.¹ Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The judicial notion of substantive due process developed early in U.S. history. State court judges attempted to formulate a theory of “natural rights” to limit government interference with private property rights.² These “vested rights” jurists found in the “law of the land” and the “due process” clauses of the states’ constitutions a restriction upon the substantive content of legislation.³ Other jurists opposed this “vested rights” theory of property protection, arguing that the state’s written constitution was its supreme law, and that judges should not look beyond the constitution to the “unwritten law” of “natural rights” when scrutinizing state legislation.⁴ Some opponents of this theory argued that the government’s “police power” allowed the state to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the state’s written constitution.⁵

The Supreme Court recognized that the Fifth Amendment guaranteed some form of substantive due process in the years leading up to the Civil War. In its 1857 opinion in Scott v. Sanford, the Court declared that the Missouri Compromise, which prohibited slavery in some U.S. territories, had been an unconstitutional deprivation of slaveholders’ property.⁶ The Court wrote that an act of Congress that deprived “a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”⁷ After the Civil War and the ratification of the Fourteenth Amendment’s Due Process Clause, the Supreme Court recognized due process guarantees with regard to state legislation.⁸ The Court applied a robust notion of substantive due process to strike down economic legislation prior to the Great Depression Era.⁹

Beginning in the twentieth century, the Court developed the doctrine of noneconomic substantive due process under the Fifth and Fourteenth Amendments, beginning with cases in which the Court recognized a constitutional right to privacy.¹⁰ The Court recognized that the Constitution’s due process guarantees protected additional fundamental rights from government interference, including the right to use contraceptives, to marry, and to engage in certain adult consensual intimate conduct.¹¹ However, since the 1980s, the Court has generally declined to invalidate government actions on substantive due process grounds, with a few exceptions.¹² In 2022, the Court further signaled a potential retreat from noneconomic substantive due process when it reversed the position it had held for nearly five decades to hold that the right to abortion is not a constitutionally protected fundamental right.¹³

Amdt5.7.2 Economic Substantive Due Process

The Supreme Court has sustained several federal laws and regulations addressing economic matters, imposed under powers specifically granted to the Federal Government, over objections based on the Due Process Clause. For example, Congress may require the owner of a vessel entering United States ports, and on which alien seamen are afflicted with specified diseases, to bear the cost of hospitalizing such persons.¹ Congress may prohibit the transportation in interstate commerce of filled milk² or the importation of convict-made goods into any state where their receipt, possession, or sale is a violation of local law.³ It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by law; to reinstate employees discharged in violation of law; and to permit use of a company-owned hall for union meetings.⁴ Subject to First Amendment considerations, Congress may regulate the postal service to deny its facilities to persons who would use them for purposes contrary to public policy.⁵

Amdt5.7.3 Equal Protection

Unlike the Fourteenth Amendment, the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.”¹ Nevertheless, the Supreme Court has held that “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”² Even before the Court reached this position, it had assumed that “discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.”³ It appears that Chief Justice William Howard Taft first described this theory when he observed that the Due Process and Equal Protection Clauses are “associated” and that “[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.”⁴

Thus, in Bolling v. Sharpe,⁵ a companion case to Brown v. Board of Education,⁶ the Court struck down racial segregation in D.C. public schools as a violation of the Fifth Amendment’s Due Process Clause, determining that due process guarantees implicitly include a guarantee of equal protection. The Court wrote, “The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. . . . [A]s this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”⁷

In subsequent cases, the Court has applied its Fourteenth Amendment jurisprudence to federal legislation that contained classifications based on sex⁸ and whether a person was born to married parents,⁹ and that set standards of eligibility for food stamps.¹⁰ However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the Equal Protection Clause itself does not outlaw “reasonable” classifications, neither does the Due Process Clause necessarily forbid social and economic legislation that contains arbitrary line-drawing.¹¹ Thus, for example, the Court has sustained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense involving a private person’s right of privacy.¹² A veterans law that extended certain educational benefits to all veterans who had served “on active duty” and thereby excluded conscientious objectors from eligibility was held to be sustainable. The Court held that Congress could reasonably conclude that the disruption caused by military service was qualitatively and quantitatively different from that caused by alternative service, and that the educational benefits would make military service more attractive.¹³

Although the “federal sovereign, like the States, must govern impartially,” there may be “overriding national interests which justify selective federal legislation that would be unacceptable for an individual State.”¹⁴ One example is the paramount federal power over immigration and naturalization, which allows the federal government to classify among categories of persons upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories¹⁵—in ways that states cannot.¹⁶

Amdt5.7.4.1 Restrictions on Federal Government Taxation

In laying taxes, the federal government is less narrowly restricted by the Fifth Amendment than are the states by the Fourteenth.¹ The federal government may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the United States,² and it may tax the income of a citizen resident abroad that is derived from property located at his residence.³ The difference is explained by the fact that protection of the federal government follows the citizen wherever he goes, whereas the benefits of state government accrue only to persons and property within the state’s borders. The Supreme Court has said that, in the absence of an equal protection clause, “a claim of unreasonable classification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment . . . .”⁴

Consistent with this holding, the Supreme Court has sustained, over charges of unfair differentiation between persons: a graduated income tax;⁵ a higher tax on oleomargarine than on butter;⁶ an excise tax on “puts” but not on “calls”;⁷ a tax on the income of businesses operated by corporations but not on similar enterprises operated by individuals;⁸ an income tax on foreign corporations, based on their income from sources within the United States, even though domestic corporations were taxed on income from all sources;⁹ a tax on foreign-built yachts but not upon domestic yachts;¹⁰ a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;¹¹ a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;¹² an Alaska statute imposing license taxes only on nonresident fishermen;¹³ an act that taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;¹⁴ an excess profits tax that defined “invested capital” with reference to the original cost of the property rather than to its present value;¹⁵ an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;¹⁶ an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor’s moiety;¹⁷ and a tax on nonprofit mutual insurers, even though such insurers organized before a certain date were exempt, as there was a rational basis for the discrimination.¹⁸

Amdt5.7.4.2 Retroactive Federal Taxes

Congress has sometimes given retroactive effect to its tax laws by, for example, making them effective from the tax year’s beginning or from the date that the bill that became the tax law was introduced.¹ Absent some peculiar circumstance, the Supreme Court has never determined that application of an income tax statute to the entire calendar year in which enactment took place has denied a person due process.² The Court has reasoned that a tax is not a penalty or contractual liability but rather “a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens.”³ Because “no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process.”⁴ The Court held valid a special income tax on profits realized from the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress.⁵ An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found constitutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.⁶ Retroactive assessment of penalties for fraud or negligence,⁷ or of an additional tax on the income of a corporation used to avoid a surtax on its shareholder,⁸ does not deprive the taxpayer of property without due process of law. Moreover, an additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the Due Process Clause.⁹ The Court similarly upheld a transfer tax measured in part by the value of property held jointly by a husband and wife, including that which came to the joint tenancy as a gift from the decedent spouse.¹⁰ It also upheld the inclusion in a trust settlor’s gross income of income accruing to a revocable trust during any period when the settlor had the power to revoke or modify the trust.¹¹

Although the Supreme Court during the 1920s struck down gift taxes imposed retroactively upon gifts that were made and completely vested before the enactment of the taxing statute,¹² it later distinguished those decisions and limited their precedential value.¹³ In United States v. Carlton, the Court declared that “[t]he due process standard to be applied to tax statutes with retroactive effect . . . is the same as that generally applicable to retroactive economic legislation”—retroactive application of legislation must be shown to be “‘justified by a rational legislative purpose.’”¹⁴ Applying that principle, the Court upheld retroactive application of a 1987 amendment limiting application of a federal estate tax deduction originally enacted in 1986. Congress’s purpose was “neither illegitimate nor arbitrary,” the Court noted, since Congress had acted “to correct what it reasonably viewed as a mistake in the original 1986 provision that would have created a significant and unanticipated revenue loss.” Also, “Congress acted promptly and established only a modest period of retroactivity.” The fact that the taxpayer had transferred stock in reliance on the original enactment was not dispositive, since “[t]ax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code.”¹⁵

Amdt5.7.5 Marriage and Substantive Due Process

In a series of Fourteenth Amendment due process and equal protection cases, the Supreme Court has identified the right to marry as a “fundamental” interest that necessitates “critical examination” of governmental restrictions that “interfere directly and substantially” with the right.¹ However, the Court has rejected some Fifth Amendment Due Process Clause challenges to federal laws that regulate the incidents of, or prerequisites for, marriage, determining that such laws were not entitled to rigorous scrutiny.² For example, in Califano v. Jobst,³ a unanimous Court sustained a Social Security Act provision that revoked “disabled dependents’ benefits” of any person who married unless that person married someone who was also entitled to receive disabled dependents’ benefits.⁴ Plaintiff, a recipient of such benefits, married another person with a disability who was not qualified for the benefits, and the plaintiff ’s benefits were terminated.⁵ The plaintiff alleged that distinguishing between classes of “persons who married eligible persons” and “persons who married ineligible persons” infringed upon his right to marry in violation of the equal protection component of the Fifth Amendment’s Due Process Clause.⁶

The Court rejected the plaintiff ’s argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner.⁷ Therefore, Congress could, as an administrative convenience, designate marriage as the benefits’ terminating point, except when both marriage partners were receiving benefits, in order to lessen hardship and recognize that dependency was likely to continue.⁸ The marriage rule was therefore not to be strictly scrutinized or invalidated “simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.”⁹

Amdt5.7.6 Abortion and Substantive Due Process

In 1973, the Supreme Court determined in Roe v. Wade that the U.S. Constitution protects a woman’s decision whether or not to terminate her pregnancy.¹ The constitutional basis for the decision rested upon the conclusion that the right of privacy “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” encompassed a woman’s decision to carry a pregnancy to term.² Following Roe, several federal abortion restrictions were challenged as infringing the analogous right guaranteed by the Fifth Amendment’s Due Process Clause.³ In 2022, a majority of the Court in Dobbs v. Jackson Women’s Health Organization⁴ overruled Roe and a 1992 abortion decision, Planned Parenthood of Southeastern Pennsylvania v. Casey.⁵ In the following cases, which upheld federal abortion restrictions, the overruling of Roe and Casey would probably not affect the restrictions’ continued enforcement.

In Harris v. McRae, the Court upheld the Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program.⁶ The Court found that the Hyde Amendment did not violate either the Due Process or Equal Protection Clauses of the Fifth Amendment, and did not violate the Establishment Clause of the First Amendment.⁷ While the Court acknowledged that the liberty guaranteed by the Fifth Amendment’s Due Process Clause, in particular, protects a woman’s freedom of choice for certain personal decisions, it does not “confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.”⁸ In Harris, the Court also recognized the right of a state participating in the Medicaid program to fund only those medically necessary abortions for which it received federal reimbursement.⁹

In 1991, the Court upheld on both statutory and constitutional grounds the Department of Health and Human Services’ regulations restricting recipients of federal family planning funding from using federal funds to counsel women about abortion.¹⁰ In Rust v. Sullivan, the Court determined that a woman’s right to an abortion was not burdened by the regulations, which implement Title X of the Public Health Service Act.¹¹ The Court reasoned that there was no constitutional violation because the government has no duty to subsidize an activity simply because it is constitutionally protected and because a woman is “in no worse position than if Congress had never enacted Title X.”¹²

In 2007, the Court applied the “undue burden” standard¹³ adopted in Casey to evaluate abortion regulations to the Partial-Birth Abortion Ban Act of 2003.¹⁴ In Gonzales v. Carhart, the Court considered whether the federal law was overbroad, prohibiting both the standard dilation and evacuation (D&E) abortion method—the most common method during the second trimester of pregnancy—and the intact D&E method, described by some as “partial-birth” abortion because the fetus is more fully developed at the time the procedure is performed. Relying on the law’s plain language, the Court determined that it could not be interpreted to encompass the standard D&E method.¹⁵ The Court noted that the standard D&E method involves the removal of the fetus in pieces.¹⁶ In contrast, the federal law uses the phrase “delivers a living fetus.”¹⁷ The Court explained that the standard D&E method “does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix.”¹⁸ The Court also identified the law’s specific requirement of an “overt act” that kills the fetus as evidence of its inapplicability to the standard D&E method, maintaining that the “distinction matters because, unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act.”¹⁹ Ultimately, the Court determined that the law did not impose an undue burden on a woman’s ability to obtain an abortion because it prohibited only the less frequently performed intact D&E abortion method.

In Gonzales, the Court also concluded that the Partial-Birth Abortion Ban Act was not unconstitutionally vague because it provides doctors with a reasonable opportunity to know what conduct is prohibited.²⁰ Unlike the Nebraska partial-birth abortion law invalidated by the Court in Stenberg v. Carhart,²¹ which prohibited the delivery of a “substantial portion” of the fetus,²² the federal law includes “anatomical landmarks” that identify when an abortion procedure will be subject to the act’s prohibitions.²³ Thus, the Court observed: “[I]f an abortion procedure does not involve the delivery of a living fetus to one of these ‘anatomical landmarks’—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.”²⁴

The Gonzales Court further observed that the Partial-Birth Abortion Ban Act’s inclusion of a scienter or knowledge requirement alleviated any vagueness concerns. Because the law applies only when a doctor “deliberately and intentionally” delivers the fetus to an anatomical landmark, the Court determined that a doctor performing the standard D&E method would not face criminal liability if a fetus were delivered beyond the prohibited points by mistake.²⁵ According to the Court, the scienter requirement “narrow[s] the scope of the Act’s prohibition and limit[s] prosecutorial discretion.”²⁶

Amdt5.7.7 Informational Privacy and Substantive Due Process

In a few cases, the Supreme Court has upheld federal record keeping or disclosure requirements against objections that they violated a purported Fifth Amendment substantive due process right to informational privacy. In California Bankers Association v. Schultz, the Court determined that the federal Bank Secrecy Act’s transaction recordkeeping provisions did not violate the due process rights of banks or their depositors by subjecting them to arbitrary or burdensome requirements.¹ In its 2011 decision in National Aeronautics & Space Administration (NASA) v. Nelson, the Supreme Court unanimously ruled against NASA employees who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.² The Court chose to “assume, without deciding,” that the Constitution protects a right to informational privacy.³ However, it held that such a right would not prevent the government from asking reasonable questions in light of the government’s interest as an employer and statutory protections that provide meaningful checks against unwarranted disclosures.⁴

Amdt5.7.8 Right to Travel Abroad and Substantive Due Process

The Supreme Court has recognized that the Fifth Amendment’s Due Process Clause protects an individual citizen’s right to travel abroad from arbitrary and indiscriminate government restrictions.¹ The Court recognized such a right in Kent v. Dulles when it held that the Secretary of State had exceeded his statutory authority by denying passports to citizens solely because they declined to respond to an inquiry about their beliefs and associations.² Subsequently, the Court confirmed that the Fifth Amendment protects a right to travel when it struck down Section 6 of the Subversive Activities Act, which made it unlawful for certain members of Communist organizations to apply for, or use, a passport.³ The Court held that Section 6 “too broadly and indiscriminately restrict[ed] the right to travel and thereby abridge[d] the liberty guaranteed by the Fifth Amendment.”⁴ However, the Court has acknowledged that the federal government may restrict citizens’ travel abroad to particular areas of the world for national security reasons.⁵

Amdt5.7.9 Right of Access to Federal Courts and Substantive Due Process

Many of the Supreme Court’s cases on due process and the right of access to courts have arisen under the Fourteenth Amendment.¹ The Court has held that, in limited circumstances, litigants have a substantive due process right of access to state courts under the Fourteenth Amendment.² For example, due process guarantees prohibit a state from denying welfare assistance recipients access to state courts to dissolve their marriage solely because they cannot afford to pay court fees and costs.³

In one case, the Court addressed whether the Fifth Amendment provides a similar right in federal bankruptcy proceedings.⁴ In United States v. Kras, the Court rejected an indigent bankruptcy petitioner’s constitutional challenge to a requirement that a petitioner pay fees required under the Bankruptcy Act and a federal court order in order to obtain discharge of his debts in a non-asset bankruptcy proceeding.⁵ The Court noted that discharge of one’s debts in bankruptcy was not a constitutional right and did not constitute the exclusive avenue for relief.⁶ It also determined that Congress had a rational basis for enacting the fee requirement.⁷

Amdt5.7.10 Congressional Regulation of Public Utilities and Substantive Due Process

When Congress has granted federal agencies jurisdiction over various public utilities, it has typically prescribed standards for fixing utility rates that are substantially identical to the constitutional standards by which the Supreme Court has tested the validity of state action. Consequently, the review of such agencies’ orders has seldom turned on constitutional issues. In two cases, however, the Court sustained maximum rates that the Secretary of Agriculture prescribed for stockyard companies only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void.¹ A few years later, in FPC v. Hope Natural Gas Co.,² the Court adopted an entirely different approach. It held that the validity of the Federal Power Commission’s order depended upon whether the impact or total effect of the order was just and reasonable, rather than upon the method of computing the rate base. Rates that enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the “present fair value” method.

Orders prescribing the form and contents of accounts that public utility companies keep³—and statutes requiring a private carrier to furnish the Interstate Commerce Commission with information for valuing its property⁴—have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directing a single common carrier by water to file a summary of its books and records pertaining to its rates was also held not to violate the Fifth Amendment.⁵