Scrutiny Levels & Due Process

Question 1

Rational Basis - Test

Answer 1

Law must be rationally related to a legitimate governmental interest

Question 2

Rational Basis - Burden of Proof

Answer 2

Laws are presumed valid under this standard

• Burden is on the challenger to overcome this presumption by showing law is arbitrary or irrational
• Gov’t will usually win under rational basis review
  
  • Unless, discrim. is based on sexual orientation

Question 3

Rational Basis - Applicability

Answer 3

Used in all cases in which one of the higher standards doesn’t apply

• Court gives extreme deference to the legislature’s right to define its objectives

Question 4

Itermediate Scrutiny - Test

Answer 4

The law must be substantially related to an important governmental interest

Question 5

Itermediate Scrutiny - Burden of Proof

Answer 5

Burden on gov’t to prove that the law in question passes intermediate scrutiny

Question 6

Intermediate Scrutiny - Applicability

Answer 6

Used when classification is based on gender or status as nonmarital child (legitimacy)

Question 7

Strict Scrutiny - Test

Answer 7

Law is unconst. unless it is the least restrictive means to achieve a compelling government interest.

Question 8

Strict Scrutiny - Burden of Proof

Answer 8

Burden is on the gov’t to prove the law is nec.

• gov’t rarely meets its burden
• Most laws subjected to this std. of review are struck down

Question 9

Strict Scrutiny Applicability

Answer 9

Applied if:

1. fund. right or
2. suspect classification
   
   • Race
   • Ethnicity
   • National Origin
   • Alienage (state law only)

Question 10

Due Process Clause

Answer 10

Gov’t can’t deprive a person of life, liberty or prop. w/out due process

• DP Clause serves 2 functions
  
  1. Imposes certain procedural requirements on the gov’t b/f it can deprive a person of life, liberty, or property (Procedural DP)
  2. Limits the substantive power of the gov’t to regulate certain areas of life (Substantive SP)

Question 11

Procedural Due Process

Answer 11

Fed. & St. gov’t must follow certain procedures b/f depriving any person

• DP clause obligates gov’t to give a person an opp. to be heard (notice & hearing)
• only when gov’t takes an action that deprives the indiv. of life or a prop. or liberty interest that’s protected by the clause
• Gov’t must provide a fair process b/f it can deprive a person of life, liberty, or prop.

Question 12

The constitution protects individuals from what?

Answer 12

Gov’t action NOT privately inflicted harm

Question 13

Procedural Due Process = Intentional or Reckless Act by Government

Answer 13

No procedural DP violation if injury was caused by gov’ts negligence

• Emergencies = Shock the conscience std.
  
  • In emergency situations, there won’t be liab. unless gov’t acted with intent of causing harm to the victim

Question 14

Procedural Due Process - Deprivation of Life

Answer 14

The interest in your life when the gov’t seeks capital punishment

Question 15

Procedural Due Process - Deprivation of Liberty

Answer 15

Loss of a significant freedom secured by the const or statute

• Institutionalization of Adult - Requires notice & hearing b/f inst. unless its an emerg.
• Institutionalization of Child - Requires a screening by neutral fact finder
• Harm to Reputation - By itself is not a deprivation of liberty
• Prisoners - Rarely have liberty issues
  
  • Writ of Habeas Corpus
    
    • Is a separate civil suit for the release of a prisoner who has been unlawfully imprisoned
    • Brings prisoner b/f ct. & requires that the custodian present proof of authority so the court can determine if the custodian has the lawful auth. to detain the prisoner

Question 16

Procedural Due Process - Deprivation of Property

Answer 16

Loss of an entitlement

• A reas. expectation of cont. receipt of a benefit
• Includes:
  
  • Pub. edu
  • Pub. employment if termination for cause or tenured (NOT at will)
  • Welfare Benefits
  • Drivers License

Question 17

Procedural Due Process - What Process is due?

What procedures must the gov’t follow in order to be able to deprive a person or corp. of life, liberty or property ?

Answer 17

The gov’t must give a person

1. Adequate notice to the P AND
2. Adequate opp. for P to be heard

Question 18

Procedural Due Process - Procedures Required

Answer 18

Ct. will apply balancing test to determine if a prior evidentiary hearing is required &, if it is, the extent of the procedural requirements for the hearing

• Ct. will consider:
  
  • The importance of the int. to the indiv. deprived of DP
  • The risk of erroneous deprivation of the int. through the procedures that were used
  • The ability of additional procedures to increase the accuracy of the fact finding
  • The Gov’ts int. including the function involved & the fiscal & administrative burdens that the additional or substitute procedural requirement would entail

Question 19

Examples of Procedure Required under Procedural Due Process

Answer 19

The balancing test gives the ct. a lot of discretion so its difficult to predict on the courts rule on procedural DP cases

• Termination of Welfare Benefits = Pre-Termination Notice & Hearing
• Termination of Soc. Sec/Disability Benefits = Post termination notice & Hearing
• Prejudgment attachment or gov’t seizure of assets = Preceded by Notice & Hearing, Except in exigent Circ.
  
  • Prop. Used in Illegal Activity can be seized even if the actual owner of the prop. is innocent
• American Citizen detained as terrorist or enemy combatant = DP Required
• Permanent Termination of Parental Custody = Notice & Hearing
• Punitive Damages = Instructions to Jury & Judicial Review
  
  • Grossly excessive Punitive Damages = Unconst. ➞ Violate DP
• Discipline by Public School = Notice of Charges & Opp. to explain
  
  • Corporal Punishment - Does not require DP

Question 20

Substantive Due Process

Answer 20

If a law limits the ability of everyone to engage in an activity, it’s a subst. DP issue.

• Gov’t must have an adequate reas. b/f depriving a person of life, liberty, or prop.
• Subst. DP protects economic liberties & fund. rights

Question 21

Substantive Due Process - Deprivation of Economic Liberties

Answer 21

Rational Basis Test

• Subst. DP is violated if gov’t conduct doesn’t pass rational basis test (Means chosen are rationally related to leg. gov’t purp.)