공법상 적법절차 원칙의 재조명 ― 미국 연방대법원 Department of Homeland Security et al. v. Regents of University of California et al. 판결을 중심으로 ―

Today, the Due Process of Law is an important principle that plays the role of power control in the area of public law encompassing the Constitution and administrative law, and there are various spectra for the category of inclusion, from the standpoint of purely emphasizing procedural aspects to the position that the adequacy of procedures should be guaranteed as well as the legality of procedures, and the stance of expanding them to principles including substantive aspects. In addition to the principle of the rule of law in the United States, the Due Process of Law has been developed into various aspects through the precedents of the United States Supreme Court. While the legal culture of the continental legal system seeks to directly target and evaluate the “content” of the administration's disposition, the United States values whether to justify the decision by controlling the procedures in which the administration's decision is made. The development of the Administrative Procedures Act, a written law in the United States, is attributable to this particular legal and cultural tradition in the United States. It is necessary to examine the meaning and implications of a recent U.S. Supreme Court ruling, which is Department of Homeland Security et al. v. Regents of University of California et al. in terms of the principle of legal procedures under public law, as it includes the issue of federal administrative procedures and the issue of equal protection based on the Due Process of Law under the 5th and 14th Amendments to the US Constitution. The U.S. Supreme Court's ruling, regardless of whether it is substantive or not, provides procedural evidence that the former administration's claim to abolish immigration policy is a violation of the Administrative Procedures Act, and that the abolition of the existing immigration policy violates, in a minority opinion, the equal protection. Even if the U.S. President has a strong authority, it is highly suggestive to us that the Judiciary can determine the validity of the executive order through a review based on the Due Process of Law. Also, from the perspective of the separation of powers, it can be seen that the superiority and reverence in the judiciary is being realized in the sense that even the powerful exercise of power by the President should be subordinate to the judicial review. In some cases, we will have to pay more attention to the discussion on Procedural Due Process in the future, considering that the guarantee of the Procedural Due Process may drive substantive fairness.