Economic Liberties

Question 1

Economic Liberties

Answer 1

Rights concerning the ability to: enter into and enforce contracts, pursue a trade or profession, and acquire, possess, and convey property.

Question 2

Substantive Due Process

Answer 2

The Due Process Clauses of the Fifth and Fourteenth Amendments provide that no person shall be deprived of “life, liberty or property, without due process of law.” These clauses apply to federal, state, and local governments. Substantive due process protects specifically identified rights from state interference. The core of substantive due process is the idea that some laws unreasonably (or substantially) interfere with a person’s enjoyment of life, liberty, or property in such a fashion that the law cannot be considered valid law. Life, liberty, or property may not be taken away without a sufficient reason.

Question 3

Substantive Due Process Analysis

Answer 3

(1) The determination as to whether the right is fundamental. (2) Determine whether (and to what extent) the right was infringed upon. (3) Determine what level of scrutiny should apply. (4) Determine whether (i) the P can prove that the law/regulation is arbitrary or unreasonable, or (ii) whether the government can carry the burden of proving that the government action that infringes upon the claimant’s rights is sufficiently related to that constitutionally-sufficient purpose.

Question 4

Substantive Due Process Analysis: Step 1

Answer 4

(1) The determination as to whether the right is fundamental.

Question 5

List of Fundamental Rights

Answer 5

Fundamental rights are either (1) deeply rooted in history and tradition, or (2) deeply connected with another recognized fundamental right:

1. Buy and use contraceptives (you also have the right to procreate)
2. Travel (from state to state)
3. Abortion (without substantial intereference during the first trimester)
4. Marry (with qualifications)(think freedom of association).
5. Live with members of one’s extended family (Note: no fundamental right to live with unrelated persons).
6. View obscene stuff in your home (note: Think privacy and freedom from unreasonable search and seizure).
7. When indigent, obtain a divorce without the necessity of a filing fee.
8. Engage in sodomy
9. Custody of your child (And a right to control or make decisions for your minor child)(Custody and education).
10. Etc.

Question 6

Substantive Due Process Analysis: Step 1 Cont’d (Nonfundamental right)

Answer 6

Is there a fundamental right at issue? If no: use rational basis review. Under rational basis review, the restriction is presumed valid, and the burden is on the challenger to prove that the law is unconstitutional (a very difficult task). In order to do so, the challenger must show that the restriction is not rationally related to any legitimate government purpose. A legitimate purpose has been interpreted to mean basically anything not forbidden by the constitution.

Question 7

Substantive Due Process Analysis: Step 1 Cont’d (Fundamental right)

Answer 7

Is there a fundamental right at issue? If yes: use strict scrutiny. Under strict scrutiny, the restriction is presumed invalid, and the burden is on the government prove that the restriction is constitutional (a very difficult task). In order to do so, the government must prove that the law (the means) is narrowly tailored to accomplish a compelling governmental objective. The means are considered narrowly tailored whenever the government can show that there are no less restrictive means available.

Question 8

Substantive Due Process Analysis: Step 2

Answer 8

If the right is a fundamental right, then Determine whether (and to what extent) the right was infringed upon. Is the government action a mere inconvenience that poses no direct legal obstacle to a person’s ability to enjoy the liberty interest at issue (indirect and/or insubstantial interference= Rational basis review), or does the government action substantially interfere with a person’s ability to enjoy their liberty interest (Substantial AND direct interference=Intermediate or strict scrutiny)?

Question 9

Substantive Due Process Analysis: Step 3.

Answer 9

(3) Determine what level of scrutiny should apply.

Question 10

Substantive Due Process Analysis: Step 4

Answer 10

(4) Determine whether (i) the P can prove that the law/regulation is arbitrary or unreasonable, or (ii) whether the government can carry the burden of proving that the government action that infringes upon the claimant’s rights is sufficiently related to that constitutionally-sufficient purpose.

Question 11

The Contracts Clause

Answer 11

The Contracts Clause of Article I provides that no state shall “pass any…law impairing the Obligation of Contracts.” The Contracts Clause applies only to the impairment of existing contracts. Laws that affect the future formation of contracts are not subject to the Contracts Clause. Generally, the appropriate standard of review depends on whether the law affects contracts between private parties or contracts to which the state is a party.

Question 12

The Contracts Clause: Private Contracts

Answer 12

Private contracts are those made between private parties. The threshold issue is whether the state law has substantially impaired a contractual relationship. A substantial impairment is one that alters the parties’ contractual expectations in a significant way. If so, then the state must show that (1) the law serves a significant and legitimate public purpose, and (2) the impairment is reasonable and appropriately tailored to that purpose.

Question 13

The Contracts Clause: Public Contracts

Answer 13

Public contracts under the Contracts Clause are those to which a government entity is a party. A law that impairs public contracts is subject to heightened scrutiny because of the risk that a government might engage in self-dealing by impairing its own contracts. Although the technical elements of a Contracts Clause analysis remain the same, the courts will give less deference to the state if a public contract is involved than if a private contract is involved.

Analysis: (1) the law serves a significant and legitimate public purpose, and (2) the impairment is reasonable and appropriately tailored to that purpose.

Question 14

The Takings Clause

Answer 14

The takings clause of the Fifth Amendment requires the government to compensate the owner of private property with the fair market value at the time of the taking when exercising the power of eminent domain to take private property for a public use. The Takings Clause of the Fifth Amendment provides that “private property shall not be taken for public use, without just compensation.” This clause requires the government to compensate the owner of private property with fair market value at the time of the taking when exercising the power of eminent domain to take private property for a public use. Litigation under the Takings Clause often focuses on (1) whether there has been a taking that would trigger compensation or (2) whether a taking is for a permissible public use, without which the government may not take private property at all.

Question 15

Types of Takings

Answer 15

1. Physical/Possessory Takings: Government confiscates or physically occupies property.
2. Regulatory Takings: Governmental regulation that leaves no reasonable economically viable use for property.

Question 16

Takings Clause Analysis

Answer 16

1. Is there taking? (Possessory or Regulatory)
2. Is it property?: Court will rely on other sources of law, usually state law, to determine if there is a property interest.
3. Is it for public use?: Public use has been broadly defined, so almost any taking will meet the requirement. Test: the taking is for public use so long as it is rationally related to a conceivable public use.
4. Is just compensation paid?: Compensation is measured in terms of the loss to the owner; the gain to the taker is irrelevant.

Question 17

Regulatory Takings Clause Analysis: Zoning

Answer 17

General rule: Ordinarily restrictions on the use of property do not constitute a taking.

Exception: When the regulation prevents all economically viable uses of the property. BUT if the regulation is one that could have been imposed anyway, under nuisance laws, then no compensation is required.

A regulation that does not prevent all economic use will be evaluated using the following factors:

1. The economic impact of the regulation on the claimant.
2. The extent to which the regulation has interfered with investment-backed expectations.
3. The character of the government action.

Note: A regulation may be challenged as a regulatory taking even if the regulation was already in place when the property was acquired.

Question 18

Regulatory Takings Clause Analysis: Conditional

Answer 18

Rule: Conditioning the development of property is a taking for which just compensation is owed when the burden imposed by the condition is not roughly proportionate to the government’s justification for regulating.

Test:

1. Is there a nexus between the state’s interest and the permit’s condition?
2. Is the condition roughly proportionate to the government’s justification for regulating? (Whether the condition balances the impact of the proposed development?)

Question 19

Regulatory Takings Clause Analysis: Moratorium

Answer 19

Rule: Temporarily denying the development of property is not a taking so long as the government’s action is reasonable.

Question 20

Analysis (simplified)

Answer 20

For any substantive Due Process challenge, whether it be under the 5th or 14th Amendment, one must determine:

1. Whether state action exists?
2. Whether a fundamental right is involved.
3. Whether and to what extent is the right infringed upon?
4. Whether the government provides sufficient justification for the infringement?