Due Process Flashcards
Procedural Due Process
A fair process (e.g. notice, hearings) is required for govt. to take or deprive a person’s life, liberty, or property
* Due process rights arise only if govt. act to deprive an individual, not when govt. acts generally
* Examples: procedural due process requirements arise with:
-Terminating welfare/social security benefits; separating child from parents; punitive damages awards; enemy combatant status for citizens obtained in foreign countries
Procedural Due Process-Analysis
1) Has there been a deprivation of life, liberty, or property?
* Liberty deprivation: loss of significant freedom of action or freedom provided by Const. or statute (e.g. institutionalization, govt. restriction of fundamental rights)
* Property deprivation: a legitimate claim or entitlement to a benefit under law, which goes unfulfilled
-E.g. public school attendance, welfare
2) What procedures are required?
Determined by balancing:
a) Importance of the individual interest involved, and
b) Value of procedural safeguards to that interest, against
c) Govt. interest (i.e. fiscal or administrative efficiency)
-Usually fair procedures, an unbiased decision-maker, and notice of the govt’s action will be required
Substantive Due Process
Involves the determination of whether govt. has adequate reasons for depriving life, liberty, or property
* Encompasses both fundamental and non fundamental rights
* Applicable levels of scrutiny
-Non fundamental rights: rational basis
-Fundamental rights: strict scrutiny
Substantive DP vs. Equal Protection Clause (EP)
- Similarities: under substantive DP and EP, a court reviews the substance of the law, not procedures
- Differences:
-Substantive DP: 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
Economic rights
Rational basis test
* Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights
* Rational basis applies unless the infringement falls under the Contract Clause or Takings Clause
-Govt. almost always wins under rational basis test
Contract clause
States cannot impair existing contractual duties
* Applies only to state/local interference with existing contractual obligations, including govt. obligations
Contract clause-levels of scrutiny
- Private contracts: intermediate type scrunity: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the la:
1) Serves an important, legitimate public interest; and
2) Is reasonably and narrowly tailored in promoting that interest - Govt. contracts: stricter scrutiny
-Local laws substantially impairing or interfering with existing govt. contracts must be reasonable and necessary to serve an important public purpose
Ex Post Facto Clause
- The Const. prohibits state and fed govts from passing retroactive laws including ex post facto
- Test: a law is an ex post facto law if it either:
a) Criminally punishes conduct that was lawful when done,
b) Increases punishment for a crime after it has been committed, or
c) Reduces the burden required to convict a person for a crime after it has been committed - Does not apply to civil liability, where retroactive legislation must meet only rational basis
- Note: this clause is contained in the Contracts clause
Bill of attainder
- Const. prohibits passing of retroactive laws including bill of attainder
- Legislative acts that punish specific individuals or group members without a judicial trial
- E.g. an order to imprison a person without judicial process
- Bills of attainder are prohibited under the Const.
Takings Clause and Eminent Domain
The 5A prohibits govt. from taking private property without providing just compensation to the owner and/or occupant
* Govt. may take private property for “public use” taking can be possessory (i.e. physical) or regulatory
* Applied to govt. action that significantly damages property or its use
Takings Clause and Eminent Domain-3 part analysis-Part 1
To determine if a taking is constitutional, ask:
1) Has there been a taking? Two types of takings:
* Posessory taking: govt. takes or occupies physical property
-Govt. may take private property for private development
* Regulatory taking: govt action that adversely affects property value; whether taking occurs depends on extent of economic interference
-Denial of all economic value: taking; requires compensation
-Denial of nearly all value: depends on the social goals promoted, diminution in value to the owner, and interference with owner’s investment expectations
Takings Clause and Eminent Domain-3 part analysis-Part 2
2) Is the taking for public use?
* Taking is for public use if the govt. has a reasonable belief the taking will benefit the public (low standard)
-Use will be viewed as benefitting public as long as it is rationally related to some legitimate public purpose
Takings Clause and Eminent Domain-3 part analysis-Part 3
3) Is just compensation paid?
* Measured in terms of loss to owner
* Measured by fair market value of property at time of taking
