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.
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. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy Citation. 367 U.S. 886 (1961)
Brief Fact Summary. Rachel Brawner was a short-order cook at a cafeteria on the Naval Gun Factory in the City of Washington. The Superintendent determined that she failed to meet security requirements, and required her to turn in her identification badge. The Cafeteria and Restaurant Workers Union (Petitioner) filed suit on Brawner’s behalf, seeking the return of her badge, re-admittance onto the premises, and her former employment.
Synopsis of Rule of Law. The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. Where it is possible to characterize that private interest as mere privilege subject to the Executive’s plenary power, it has been held that notice and hearing are not constitutionally required.
Issue. Did Respondents’ action in denying Brawner access to the Gun Factory deprive her of any right secured by the Constitution?
Held. No. The Due Process Clause of the Fifth Amendment was not violated in this case. Because Brawner had no constitutional right to be there in the first place, denying her access did not deprive her of liberty or property. A hearing procedure was not constitutionally required. This was not a case where government action bestowed a badge of disloyalty or foreclosed other employment opportunity (Brawner was offered another job). The important government function was to manage the internal operation of a federal military establishment, which is an area where the Federal Government has traditionally exercised unfettered control. Dissent. The majority held that the mere assertion by government that exclusion is for a valid reason forecloses further inquiry; and that a government official can simply rely on “security reasons” to dismiss at will for any discriminatory cause. The label “security risk” carries with it a sinister meaning and harm to reputation for which the Fifth Amendment should afford protection. Concurrence. None.
Discussion. Due process was not violated because this case involved the important interest of keeping security on a military establishment; and Brawner did not lose liberty or property within the protection of the Fifth Amendment because the action did not impair her other employment opportunities.