=Protection/DP Flashcards
Article IV - Privileges and Immunities Clause
Prohibits discrimination by a state against a non-resident.
Only provides protection vs. fundamental rights or civil liberties such as important economic interest like livelihood.
Generally only applies when discrimination is protectionist in nature.
Does Article IV - Privileges and Immunities protect corporations and aliens?
No
What doctrines protect aliens?
Equal Protections
Due Process of 14th Amendment
Dormant Commerce Clause
Outcome if State regulation discriminates against interstate commerce on its face?
Invalid unless:
1) Furthers important non-economic activity and state interest and no reasonable alternative exists.
OR
2) State is a market participant
OR
3)Involves government action regarding performance of a traditional government function
What is the principal of the dormant commerce clause?
If congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce.
The state cant discriminate or unduly burden interstate commerce - otherwise its a violation of the commerce clause
What is another name for the dormant commerce clause?
The negative commerce clause
True or False: A state can prefer its own citizens if it is a market participant
True
How can a state win a challenge to a claim of a violation of the DCC?
The state must prove that:
(i) regulations furthers an important non-economic interest
and
(ii) no reasonable non-discriminatory alternative is available.
What is the analysis if the state/local law does not discriminate?
Commerce Clause: If burden on interstate commerce and such burden outweighs the state interest = invalid
No claim under Article IV P & I because no discrimination.
Who generally regulates foreign corporations?
Congress
Who generally regulates aliens?
Congress
Is there a market exception to commerce clause?
Yes
Is there a market exception to P&I of Article IV
No
What is the result of a state law burdens ICC but is not discriminatory on its face?
Invalid
Unless the state’s interest in regulation outweighs the burden on interstate commerce.
What is the analysis if state and local action discriminate vs. out of state entities?
Commerce Clause analysis and PI of Article IV analysis
Can a corporation or alien be a plaintiff under a commerce clause challenge?
Yes
Can a corporation or alien be a plaintiff under a privilege and immunities challenge?
No
What is the 14th Amendment Priv OR Immunities Clause?
A state may not deny their citizens privileges or immunities of natural citizenship
-voting, interstate travel, petition to congress
What is the affect if state regulation affects activity addressed by federal legislation?
The regulation is invalid if:
1) Federal law preempts the field; or
2) state law conflicts with federal law
Valid if the federal law authorizes it and there is no conflict with another law.
What is the result if a law
1) Not affect activity regulation by federal law
2) not discriminate against interstate commerce
3) Not burden interstate commerce
Valid state regulation
How can a state law or regulation survives challenges under Article IV Privlege and Immunity?
State must show that non-resident either caused or is part of the issue; and
no less restrictive means are available to solve the problem.
What level of scrutiny is given to General discrimination?
Intermediate
What level of scrutiny is given to legitimacy discrimination?
Intermediate
Is an all male draft considered valid or invalid law?
Valid
Are rape laws considered to be valid or invalid gender based laws?
Valid
Are gender-based death benefits valid or invalid?
Invalid
Are gener-based peremptory strikes valid or invalid?
Invalid
Is alimony only for women valid or invalid?
Invalid
Gender based discrimination drinking age - valid or invalid?
Invalid
What are the suspect classes?
Race/National Origin/Religion/Alienage
State discrimination against aliens.
If congress does it not strict scrutiny
What is the scrutiny standard if congress discriminates against alien?
Likely - rational basis - usually upheld if reasonable.
What is the scrutiny standard if a state discriminates against alien?
Strict Scrutiny
What is the scrutiny standard for affirmative action?
Strict Scrutiny: Ok to remedy past discrimination
- Must be narrowly tailored
- States can remove affirmative action
Can race be considered for drawing district lines?
Yes but it cannot be the predominant factor
Is racial imbalance enough for a law to be struck down?
No - there must be discriminatory intent.
What type of power does congress have over aliens and corporations?
Plenary Power
What is the standard if the law against an alien discriminates against their participation in state law?
Rational basis test - applies to work as a police office, h.s./m.s./elementary school teacher/ probation officer
What is the standard for discriminating against undocumented individuals?
Rational basis
Can undocumented children be discriminated against regarding access to education?
No - Intermediate scrutiny
When is Substantive Due Process Triggered?
If a law limits liberty to all person who engage in some activity.
Who does Substantive Due Process under the 5th Amendment apply to?
Federal Government
Who does Substantive Due Process under the 14th Amendment apply to ?
State and Local Government
If a fundamental right is affected, what is the scrutiny level for substantive due process?
Strict Scrutiny
If a fundamental right is not affect, what is the scrutiny level for substantive due process?
Rational Basis
What is the rational basis standard?
Law is upheld if it is rationally related to a legitimate government purpose.
What is the intermediate scrutiny standard?
Law upheld if it is substantially related to an important government interest.
What triggers intermediate scrutiny
Gender and Legitimacy
What is the strict scrutiny standard?
Law is upheld if its necessary to achieve a compelling government interest
When is strict scrutiny triggered?
Fundamental rights (Privacy/Interstate Travel/ Voting/ First Amendment)
Suspect class (National Origin/Race/Alienage)
What is procedural due process?
Individual has the right to notice and an opportunity to be heard before a right is taken away.
When is equal protection triggered?
If law treats a person or class differently from others.
Applies to discriminatory and arbitrary action.
What is the difference between substantive due process and equal protection?
Substantive process applies to individuals across the broad.
Equal protection treats a person or class differently from others.
What is key to prevail in an equal protection challange?
There must be an intent to discriminate by showing
1) law is discriminatory on its face; or
2) law has a discriminatory application even though its facially neutral; or
3) There is a discriminatory motive behind the law
Discriminatory effect along is not enough.
Valid or Invalid under Article IV for P&I: Statute requiring non-rez to pay $2500 for license to commercial fishing and residents pay 5.00.
Invalid
Valid or Invalid under Article IV for P&I: Statute gives resident creditors priority over non resident cretiros to assets for foreign corps.
Invalid
Valid or Invalid under Article IV for P&I: Statute imposing residency requirements for abortion
Invalid
Valid or Invalid under Article IV for P&I: Rule limiting bar admission to state residents.
Invalid
Valid or Invalid under Article IV for P&I: Statute requiring private sector employers to hire residences as first preference.
Invalid
Valid or Invalid under Article IV for P&I: Statute requiring non residence to pay 225 for a recreational hunting license and residents to pay 25
Valid
Is a mere desire or hope enough for a property claim under due process?
No - there must be a legitimate claim - an entitlement under state or federal law to the property interest.
What due process requirements are in place for commitment to mental institution?
Adult: Prior notice and prior hearing (Except in emergency situation)
Child: Prior screening in front of a neutral decision maker.
What due process requirements are in place for Welfare Benefits?
Prior notice and prior evidentiary hearing
What due process requirements are in place for Disability Benefits?
Prior notice and opportunity to respond with subsequent evidentiary hearing
What due process requirements are in place for Public employment (tenured or termination for cause only)
Prior notice and opportunity to respond with subsequent evidentiary hearing
What due process requirements are in place for Public Education (discipline/dismissal)?
Prior notice and an opportunity to be heard. No evidentiary hearing.
What due process requirements are in place for Driver’s License suspension?
Prior evidentiary hearing - except breathalyzer suspension statute.
What due process requirements are in place for Termination of Parent custody rights?
Prior notice and prior evidentiary hearing.
What due process requirements are in place for civil forfeitures?
Prior notice and evidence hearing for real property.
Subsequent notice and hearing for personal property.
What due process requirements are in place for Detention of Citizen enemy combatants?
Subsequent notice and a meaningful opportunity to contest the actual basis for detention before a neutral decision maker.
What is the difference between Substantive Due Process and Equal Protection?
Substantive Due process limits liberty of all persons to engage in some activity.
Equal protection treats a person or class of persons differently from others.
What is the claim if fundamental rights are denied to everyone?
Substantive due process.
What is the claim if fundamental rights are denied to some individuals and not others?
Equal protection
What are the fundamental rights under the Substantive Due Process Clause?
Privacy Rights: Contraceptives Abortion Marriage Procreation Education of children Right to keep family together Sexual Contact
Right to vote
Right to travel
What is the test for violation of a privacy right or fundamental right?
Strict scrutiny except for Abortion and Sexual Contact which have own standards.
Pre-viability Rules
Before viability, a state can adopt regulation protecting the mother’s health and life of fetus if it does not place an undue burden on the woman’s right to get an abortion.
What is an undue burden for abortion?
1) Requiring notice to spouse
2) Requiring physician to have admitting privileges at a hospital
What is not an undue burden for abortion?
1) Requiring doctor to give info for informed consent
2) Requiring 24 hour waiting period
3) Requiring parental consent or parental notice for minors to get abortion with judicial bypass
4) Requiring abortions by licensed physicians
5) Barred a well defined partial abortion procedure if other options available
Post Viability
State’s interest in the fetus can override the woman’s right to an abortion but state cannot prevent it if necessary to protect a woman’s health of safety.
How judges deal with abortion statutes
If there is a valid application to the statute, fashion a narrower relief against the unconstitutional application.
Standard for Sexual Contact
Government has no legitimate interest in regulating it - no standard has been set
Standard for violation of right to vote?
Strict Scrutiny
Residency Requirements and ID for voting
Valid
Property ownership for voting
Invalid
Poll Tax for voting
Invalid
Test for Right to Travel
Strict Scrutiny - Domestic Only
When is the right to travel at issue?
When a state imposes a minimum durational residency requirement to receive a benefit or gives benefits based on residency length.
One year residency requirement for welfare benefits
Invalid
One year residency requirement for state sub medical care
Invalid
One year residency requirement to vote in state
Invalid
30 days residency requirement to vote in state
Valid
One year residency requirement to get divorced
Valid
When does equal protection apply?
When the Gov draws a distinction among people.
When does substnative due process apply?
Does Gov have an adequate reason for taking away a person’s life, liberty or property?
When does the DCC apply?
Burden on interstate commerce.
Corps and Aliens can sue under this.
When does Priv and Immunity of Art IV apply?
Discrimination of out of staters required in order to apply.
Requires discrimination with fundamental rights or important economic activities.
Corps and aliens cannot sue under this.
What is the Priv or Immunities of 14th Amendment?
Used to preserve a person’s right to travel from one state to another.
