Retroactive Legislation Flashcards
What is the contract clause?
The Contract Clause limits the ability of state and local governments to enact laws that retroactively impair contract rights. It doesn’t affect contracts not yet made.
Does the contract clause apply to the federal government?
There’s no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause.
What are the basic impairment rules?
a. Private Contracts—Intermediate Scrutiny
Legislation that substantially impairs an existing private contract is invalid unless the legislation:
• Serves an important and legitimate public interest, and
• Is a reasonable and narrowly tailored means of promoting that interest
b. Public Contracts—Heightened Scrutiny
Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state.
What are ex post facto laws?
Neither the states nor the federal government may pass an ex post facto law, which is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial
manner for the purpose of punishing a person for some past activity. A statute retroactively alters a law in a substantially
prejudicial manner if it:
• Makes criminal an act that was innocent when done,
• Imposes a greater punishment for an act than was imposed for the act when it was done, or
• Reduces the evidence required to convict a person of a crime from what was required when the act was committed
Note that the Due Process Clauses of the Fifth and
Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.
What are bills of attainder?
Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state/local governments are prohibited from passing bills of attainder.
What are the due process considerations?
If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the Due Process Clause. If the retroactive law doesn’t
substantially burden a fundamental right, it only needs to be rationally related to a legitimate government interest.
