"In the world of capital punishment, the oft-repeated refrain “death is different” stands for the notion that when the state exercises its most awesome power—the power to take human life—every procedural protection should be provided. Every safeguard should be met. Granted, doing so makes the death penalty cumbersome. And granted, it slows what Justice Blackmun famously called “the machinery of death.” But when the stakes are literally life and death, the idea is that we ought to make sure that whatever the state does, it does right.

Scholars have lamented the way that this idea of death penalty exceptionalism has played out in the capital punishment context, but in the administrative law context, “death is different” takes on a new meaning altogether. In the administrative law context, “death is different” means suspension of the rules that ordinarily apply to administrative decisionmaking. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less." [..]

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