Due Process Flashcards
What are the types of Due Process?
Procedural - what the government has to do before they can do it, what process you deserve.
Substantive - whether the government can actually do what they are doing (the Reason)
What factors must be weighed when looking at Due Process?
• The individual’s interest (often in liberty)
• The government’s interest and burden on affording more process
○ enemy combatants do not return to the battlefield
○ Burden - e.g. transportation or on the military mission
• Risk of error and probable value of additional safeguards.
○ What is the chance that the current process can err over the reason for detention?
- In this instance, no chance for Hamdi to rebut his detention, or to review the evidence (or lack thereof).
○ What is the chance that if you give the person more process, you will get to the right result?
- More process would allow a neutral judge to examine the evidence that was just taken as fact by the military commission.
(Matthews v. Eldridge)
Hamdi v. Rumsfeld
A combatant being detained as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the governments factual assertions before a neutral decision maker.
Are non citizens entitled to process?
Right to habeas extends to enemy combatants held at Guantanamo Bay.
Congress cannot block access to courts unless it validly suspends writ or creates an adequate substitute procedure.
Military Commission Ace does not provide adequate procedure. (Boumediene v. Bush)
What is the Privileges and Immunities clause?
no state shall make any law which shall abridge the privileges and immunities of citizens of the United States.
Cases under the 14th amendment found that the right to work was protected under P&I Clause.
What did the Court find the Privileges and Immunities clause protected under the 14th Amendment with regards to the States?
○ Making claims on government seats
○ Transacting business with government
○ Seeking government protection
○ Free access to seaports, subtreasuries, land offices, and courts.
• Severely restricted the privileges and immunity clause of the 14th Amendment (essentially made this clause dormant). Followed for 126 years.
Saenz v. Roe
Right to Travel between the States.
Law restricting welfare payments impeded on the right to travel.
• Distinguished welfare payments by saying they were not “portable” - would be spent in the state and cannot take those benefits with you to another state.
• Education and divorce could be used in any state and thus are portable, and allowed.
What is the difference between Procedural and Substantive Due Process?
• Procedural - was the procedure in compliance with applicable laws?
• Substantive - The reason the government is taking your life, liberty, or property, and is that reason sufficient.
○ If a fundamental right - Necessary to achieve a compelling standard (strict scrutiny)
- Economic rights are not fundamental
How can the state use its police power to regulate?
the act must have a direct relation to the safety, health, and general welfare:
• A means to an end
• The end itself must be appropriate and legitimate
Lochner v. New York
Law put restrictions on working hours for bakers.
Court says that bakers are equal in intelligence and capacity to men in other trades.
• State cannot take away their rights to contract as they want.
• Not wards of the state that need the protecting arm of the state to interfere with their judgment and actions.
This ruling made even though the state had legitimate reasons to regulate working hours.
What was the concern about the Court’s ruling in Lochner?
Judicial overreach, Court had no true constitutional basis for their ruling.
Epitome of Judicial Activism. Court put forward its own view and maneuvered the Constitution to suit their needs.
What was the significance of West Point Hotel v. Parrish?
Minimum wage law for women allowed (overruled Adkins)
• Health of women and protection from unscrupulous employers is necessary for the public welfare.
• Public had to support the women making low wages through taxes, better if the company that was using their work had to pay instead of the public
Begins a turning point towards deference towards state law.
• Roosevelt had just announced his court packing plan, and Justice Roberts changed his vote, which had previously struck down several New Deal laws.
• End of the Lochner Era
What is the rational review standard for Due Process?
A law that is rationally related to a legitimate government purpose does not violate due process
Rational review requires only a conceivable rational relationship between the means and the law’s purpose. (Williams v. Lee Optical Co.)
What case set the stage for equal protection and the tiers of review?
U.S. v. Carolene Products.
minorities may need a higher level protection of the courts because they cannot pass laws not wanted by the majority (shut out of the political process)
What is the analysis for fundamental rights?
Use for all Due Process Questions
must conduct an analysis of each question (argue both sides):
1. Is it a fundamental right?
a. Not always clear. Can argue that something should be a fundamental right, even if the court has not ruled on it.
b. If yes, strict scrutiny. If no, rational review.
2. Is the right infringed?
3. Is there significant justification?
a. Must justify the act (Substantive)
b. Must provide adequate procedures (Procedural)
4. Are the means sufficiently related to the ends?
