Legal Memorandum: Protected Property Interest

Issue: What constitutes a ‘protected property interest’?

The Supreme Court has indicated that a benefit that a specific group of citizens become entitled to by reason of a statute will constitute a “protected property interest” which the government may not deny without due process.  Board of Regents v. Roth, 408 U.S. 564, 577 (1972).  The Court explained:

The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests-property interests-may take many forms.

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Certain attributes of ‘property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and […]