Bailey v. Richardson

Brief Fact Summary. Bailey, a civil service employee of the United States Government, was discharged from employ for allegedly having associations with Communist groups. Bailey claimed that the due process clause of the Fifth Amendment to the United States Constitution required that she be afforded a quasi-judicial hearing before dismissal.

Synopsis of Rule of Law. The due process clause provides: “No person shall be deprived of life, liberty or property without due process of law.” However, government employ is not “property” under the Fifth Amendment, nor is it a contract.

Facts. The Regional Board advised the Federal Security Agency, by which Bailey was employed, that it has reason to believe she was disloyal to the United States Government, and instructed the Agency to separate her from service. Bailey appealed to the Loyalty Review Board and requested a hearing, which was held before the panel without testimony from any other witnesses besides Bailey. Bailey complained that her Fifth Amendment due process right was violated because she was denied reinstatement without revelation of the names of those who informed the Government against her, and the methods by which her activities were detected.

Issue. Was the President required to either allow Bailey, a person whose loyalty he reasonably suspected, to continue her employment, or to publicly reveal the methods by which he detected disloyalty and the names of persons who assisted him?

Held. No. The due process of law clause of the Fifth Amendment does not restrict the President’s discretion or the prescriptive power of Congress in respect to executive personnel. No hearing was required prior to termination, as government employment is not a property right encompassed by the Fifth Amendment. Dissent. Judge Edgerton’s dissent involved First and Sixth Amendments rights, and did not address Bailey’s Fifth Amendment claims. Concurrence. None.

Discussion. Even in normal times (without Communist threats), the ability, integrity and loyalty of purely executive employees is exclusively for the executive branch of Government to determine.