LAW
GPO-CONAN-2017-10-15.pdf

Guage that required that officers either use every

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guage that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this lan- guage with the creation of an enforceable right, noting a long- standing tradition of police discretion coexisting with apparently man- datory arrest statutes. 822 Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme. 823 In Arnett v. Kennedy , 824 an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to en- titlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right- privilege distinction, albeit in a new formulation. The case in- volved a federal law that provided that employees could not be dis- charged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitle- ments. The Justices, however, observed that the same law specifi- cally withheld the procedural protections now being sought by the employees. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,” 825 the employee would have to “take the bitter with the sweet.” 826 Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required. stantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 474 U.S. at 225. 821 545 U.S. 748 (2005). 822 545 U.S. at 759. The Court also noted that the law did not specify the pre- cise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.” Id. at 763. 823 545 U.S. at 764–65. 824 416 U.S. 134 (1974). 825 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger). 826 416 U.S. at 154. 1983 AMENDMENT 14—RIGHTS GUARANTEED
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But the other six Justices, although disagreeing among them- selves in other respects, rejected this attempt to formulate the is- sue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legisla- ture may elect not to confer a property interest in federal employ- ment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safe- guards.” 827 Yet, in Bishop v. Wood , 828 the Court accepted a district court’s finding that a policeman held his position “at will” despite language setting forth conditions for discharge. Although the major-
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