Due Process

Question 1

procedural due process

Answer 1

a fair process is required for govt to take or deprive a person’s life, liberty, or property
- only arises if govt acts to deprive an individual, not when govt acts generally

eg notice, hearings

Question 2

deprivation

Answer 2

intentional govt conduct (NOT negligent)

Question 3

liberty

Answer 3

physical freedom
legal freedoms

NOT mere harm to reputation

Question 4

property

Answer 4

real or personal property
intangibles
some govt benefits
* reasonable expectation of continued receipt

Question 5

process

Answer 5

notice
hearing
neutral decisionmaker
* govt provided
* no actual or serious risk of bias

Question 6

procedural due process analysis

Answer 6

two steps:
1. has there been a deprivation of life, liberty, or property
2. what procedures are required (balancing test)

Question 7

deprivation of life, liberty, or property

Answer 7

two types:
1. Liberty deprivation
2. Property deprivation

Question 8

liberty deprivation

Answer 8

loss of significant freedom of action or freedom provided by Const or statute

eg institutionalization, govt restriction of fundamental rights

Question 9

property deprivation

Answer 9

a legitimate claim or entitlement to a benefit under law, which goes unfulfilled

eg public school attendance, welfare

Question 10

what procedures are required (balancing test)

Answer 10

determined by balancing:
1. importance of individual interest involved, and
2. value of procedural safeguards to that interest, against
3. govt interest (ie, fiscal or administrative efficiency)

Usually required
- fair procedures
- an unbiased decision-maker
- notice of govt’s actions

Question 11

procedural due process examples

Answer 11

procedural due process requirements arise with:
- teminating welfare/social security benefits
- separating child from parents
- punitive damages awards
- enemy combatant status for citizens obtained in foreign countries

Question 12

substantive due process (SDP)

Answer 12

involves the determination of whether govt has adequate reasons for depriving life, liberty, or property
- encompasses both fundamental and non-fundamental rights

Question 13

applicable levels of scrutiny for SDP

Answer 13

Rational basis: non-fundamental rights
Strict scrutiny: fundamental rights

Question 14

SDP v. Equal Protection Clause (EP)

Answer 14

Similarities: a court reviews the substance of the law NOT procedures

Differences:
* SDP: usually involves laws affecting rights of all persons to engage in some conduct or activity
* EP: usually involves laws treating certain people or classes of people differently than others, often based on some trait

Question 15

economic rights

Answer 15

rational basis test
- UNLESS infringement falls under the Contract Clause or Takings Clause
- Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights)

Govt almost always wins under rational basis test

Question 16

contract clause

Answer 16

states cannot impair existing contractual duties
- applies only to state/local interference w/ existing contractual obligations (incl. govt obligations)
- Levels of scrutiny: different for private v. public contracts

Question 17

private contracts

Answer 17

intermediate-type of scrutiny
If a law substantially impairs a party’s rights under an existing contract, it violates the contract clause unless the law:
1. serves an important, legitimate public interest; and
2. is reasonable and narrowly tailored in promoting that interest

Question 18

public contracts

Answer 18

stricter scrutiny
local laws substantially impairing or interfering with existing govt contracts must be reasonable and necessary to serve an important public purpose

Question 19

retroactive law prohibition

Answer 19

Const. prohibits state and fed govts from passing retroactive laws
- generally involve either ex post facto laws or bills of attainder

Question 20

ex post facto clause

Answer 20

prohibits ex post facto laws

NOTE: ex post facto clause is contained in contracts clause

Question 21

determining ex post facto law

Answer 21

test: a law is an ex post facto law if it either:
1. criminally punishes conduct that was lawful when done,
2. increases punishment for a crime after it has been committed, or
3. reduces the burden required to convict a person for a crime after it has been committed

NOTE: does NOT apply to civil liability, where retroactive legislation must meet only rational basis

Question 22

bill of attainder

Answer 22

legislative acts that punish specific individuals or group members without a judicial trial

Unlawful: Bills of attainders are prohibited under Const.

eg, an order to imprison a person without judicial process

Question 23

takings clause & eminent domain

Answer 23

subject to due process laws