DUE PROCESS

Question 1

Due Process Checklist

Answer 1

PROCEDURAL DUE PROCESS

• Procedural Due Process
  
  • Threatened Protected Interest
    
    • Property
    • Liberty
  • Process Due
    
    • Notice and Hearing

SUBSTANTIVE DUE PROCESS

• Substantive Due Process
  
  • Standards of Review
    
    • Fundamental Rights
      
      • Strict Scrutiny
    • Non-Fundamental Rights
      
      • Rational Basis

Question 2

Procedural Due Process

Answer 2

The Due Process Clause provides that no state shall make or enforce any law which shall deprive any person of life, liberty, or property without due process of the law

*applicable to state and local governments through the Fourteenth Amendment and to the federal government through the Fifth Amendment.

Question 3

Threatened Protected Interest - Property

Answer 3

A property interest must be a legitimate claim or entitlement under the law

*e.g. public education, welfare, public employment, disability benefits, government issued licenses

Question 4

Threatened Protected Interest - Liberty

Answer 4

A person is deprived of his liberty when the government impinges on his

(i) physical freedom,
(ii) freedom of choice, or
(iii) fundamental rights under the Constitution

Question 5

Procedural Due Process - Process Due

Answer 5

If the government interferes with a protected interest, courts consider the following factors in determining the process due:

(i) the private interest affected by the government interest,
(ii) the risk of erroneous deprivation of such interest though procedures used and the probative value of additional or substitute procedural safeguards, and
(iii) the fiscal and administrative burden in providing the additional or substituted process

Question 6

Procedural Due Process - Notice and Hearing

Answer 6

Generally, a person is entitled to notice and an opportunity to be heard

Question 7

Substantive Due Process

Answer 7

Substantive Due Process protects persons from the government’s unlawful impingement of their rights

Question 8

Substantive Due Process - Standards of Review

Fundamental Rights

Answer 8

The government’s impingement of a fundamental right is subject to strict scrutiny

Strict Scrutiny - requires that the law be (1) necessary and the least restrictive means to achieve a (2) compelling government interest. The burden is on the government to overcome strict scrutiny.

Question 9

Substantive Due Process - Standards of Review

Non-Fundamental Rights

Answer 9

The government’s impingement of a non-fundamental right is subject to the rational basis test.

Rational Basis - requires that the law be (1) rationally related to a (2) legitimate government interest. Laws are presumed valid under this test, so the burden is on the challenger to overcome the presumption by proving that the law is arbitrary or irrational.