Bell Nunnally Senior Associate Nathan Cox authored the Texas Lawyer article “The Trouble with ‘Shocks the Conscience’” examining how courts assess when government conduct crosses constitutional lines – not based on process, but substance.

Cox explains the distinction between procedural and substantive due process under the Fifth Amendment and the framework courts use to evaluate potential violations. When alleged government overreach does not implicate a clearly recognized fundamental right, or involves executive action, courts often turn to the “shocks the conscience” standard, a vague and inconsistently applied test developed in police misconduct cases.

The article highlights how this doctrine is being tested in Lighthiser v. Trump, a pending federal case in Montana, where plaintiffs argue that recent executive orders promoting fossil fuel development violate their Fifth Amendment rights. Cox notes that the court may have to determine whether dismantling federal climate safeguards rises to the level of conscience-shocking.

“Unless courts are willing to rethink what truly ‘shocks the conscience,’” Cox writes, “the test will remain more rhetorical than real.” Cox concludes that, while the standard is meant to limit egregious government action, it often fails to offer clear protections outside narrow enforcement contexts.

To read the full article, please click here.