Constitutional Law - Levels of Scrutiny and Procedural Due Process Flashcards
Congress can apply Constitutional norms to private conduct through
(1) the 13th amendment for prohibiting private race discrimination
(2) Commerce power
Ordinarily, the Constitution’s protections only apply when there is
government/state action.
The two exceptions where private conduct must comply with the Constitution are the
(1) public function exception
(2) entanglement exception
Under the public function exception, the Constitution applies if
a private entity is performing a task traditionally, exclusively, done by the government (i.e. a company-owned town must comply with Free Speech rules)
Under the entanglement exception, the Constitution applies if
the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Plaintiffs ask a court to enforce a racially restrictive covenant. State action?
Yes, state action.
The government leases premises to a restaurant that racially discriminates. State action?
Yes, state action.
Government provides books to schools that racially discriminate. State action?
Yes, state action.
A private school that is over 99% funded by the government fires a teacher because of her speech. State action?
No, no state action.
NCAA orders the suspension of a basketball coach at a state university. State action?
No, no state action.
A private entity regulates interscholastic (high school) sports within a state.
Yes, state action.
A private club with a liquor license from the state racially discriminates.
No, no state action.
The Bill of Rights applies directly only to the
federal government.
The Bill of Rights applies to the state and local governments through
the due process clause of the 14th Amendment.
The four rights in the Bill of Rights that have not been applied to state and local governments are
(1) 3rd amendment right against soldier quartering in a person’s home
(2) 4th amendment right to a grand jury indictment in criminal cases
(3) 7th amendment right to a jury trial in CIVIL cases
(4) 8th amendment right against excessive fines
The three levels of scrutiny are
(1) rational basis
(2) intermediate scrutiny
(3) strict scrutiny
The rational basis test requires that the law be
RATIONALLY related to a LEGITIMATE/permissible government purpose.
**Government almost always wins under this test.
Under the rational basis test, the government’s purpose can be
any conceivable purpose. The actual purpose is not relevant (except if its discriminatory under the disparate impact test).
Under the rational basis test, the _____ has the burden of proof.
challenger
In order to survive intermediate scrutiny, the law must be
SUBSTANTIALLY related to an IMPORTANT government purpose. The law must be narrowly tailored.
Under intermediate scrutiny, the court looks at the government’s _____ purpose.
actual
Under intermediate scrutiny, _____ has the burden of proof.
the government
In order to survive strict scrutiny, the law must be
NECESSARY to achieve a COMPELLING government purpose and must be the LEAST RESTRICTIVE means of achieving that purpose.
Under strict scrutiny, courts look at the government’s _____ purpose.
actual
Under strict scrutiny, _____ has the burden of proof.
the government
Strict scrutiny applies to laws regarding
(1) fundamental rights (interstate travel, privacy, voting, 1st Amendment)
(2) suspect classifications (race, national origin, sometimes alienage)
Intermediate scrutiny applies to laws regarding
quasi suspect classifications (gender, legitimacy, undocumented alien children)
Rational basis applies to laws
that do not fall under strict scrutiny or intermediate scrutiny.
The three sources of individual rights under the 14th Amendment are
(1) procedural due process
(2) substantive due process
(3) Equal protection
Procedural due process applies when there has been
a deprivation of life, liberty, or property.
A deprivation of liberty occurs if there is
the loss of a significant freedom provided by the Constitution or statute
Under procedural due process, institutionalization of an adult absent an emergency requires
notice and a hearing
Under procedural due process, institutionalization of a child requires
screening by a neutral fact finder
Under procedural due process, harm to reputation itself
is not a loss of liberty
Under procedural due process, prisoners
rarely have liberty rights
A deprivation of property occurs if
there is an entitlement and that entitlement is not fulfilled
Under procedural due process, the rights/privileges distinction
has been abandoned. This is the WRONG answer choice.
For a deprivation of due process, the government action must be
intentional or at least reckless. Negligence is not sufficient.
In emergency situations, the government is liable under due process only if its conduct
“shocks the conscience”
Generally, the government only has a duty to protect people from privately inflicted harms if it
created the situation leading to the harm. (e.g, failing to remove a child from an abusive situation is NOT a DP violation)
The procedural due process test requires the court to balance
(1) the importance of the interest to the individual
(2) the ability of additional procedures to increase the accuracy of fact-finding
(3) the government’s interest
Under procedural due process, termination of welfare benefits requires
notice and a hearing.
Under procedural due process, termination of Social Security disability benefits requires
a post-termination hearing
Under procedural due process, student discipline in public schools requires
notice of charges plus an opportunity to explain. Corporal punishment does not require DP.
Under procedural due process, parental custody termination requires
notice and a hearing.
Under procedural due process, punitive damage awards require
instruction to the jury plus judicial review. Grossly excessive awards violate DP.
Under procedural due process, classification of an American as an enemy combatant requires
full DP: notice, meaningful factual hearing, represented by counsel
Under procedural due process, prejudgment attachment or government seizure of assets requires
notice and a hearing, except in exigent circumstances (i.e. the person is likely to get rid of the property if we wait).
Under procedural due process, the government ____ seize property used for illegal activity, even if ________.
can; the owner is innocent.
Government may take private property
for public use if it provides just compensation
The two types of governmental takings are
(1) possessory - requires confiscation or physical invasion (no matter how slight)
(2) regulatory - regulation leaves no reasonable economically viable use
Government conditions on development of property (i.e. permits) must be justified by
a benefit that is roughly proportionate to the burden imposed, otherwise it’s a taking.
A property owner may bring a takings challenge to regulations even if those regulations existed
at the time the property was acquired.
Temporarily denying an owner use of property is not a taking so long as
the government’s action was reasonable.
A taking is for public use if the government
acts out of a reasonable belief that its action will benefit the public
Just compensation is measured by
the FMV or loss to the owner. Gain by the taker is irrelevant.
Under the Contracts Clause, no state shall
impair the obligations of existing contracts. Applies only to state or local interference with EXISTING contracts, feds can interfere.
State or local government interference with private contracts must meet
intermediate scrutiny: (1) does the legislation substantially impair a party’s rights under an existing contract?
(2) if so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate government interest?
State or local government interference with federal government contracts must meet
strict scrutiny
The ex post facto clause does NOT apply in
civil cases. Retroactive civil liability need only meet rational basis.
