Constitutional Law Outline
I. JUDICIAL REVIEW
Text: The Constitution does NOT explicitly state that the Supreme Court may determine the
constitutionality of acts of other branches of government – Marbury Relies on the Structure of the Constitution.
- The text of the Constitution grants jurisdiction to the Court in all cases arising under the Constitution: thus à Ct must have the authority to examine the constitutionality of acts of Congress or w/o judicial review, this clause (III, 2, [1] ) would make little sense.
Intertextual/Implicit:Cts get this power b/c the ct. must decide which law trumps when 2 laws conflict
- The Supreme Ct. has the power, implied from VI, 2 (This Constitution, and laws, which
shall be made in pursuance thereof; shall be the supreme Law of the Land) to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
Precedent: Judicial Review of other branches of the federal government was established in Marbury -
- Marshall C.J. said the Constitution is “LAW” and it is the province and duty of the
judiciary to declare what the law is.
- Supreme Ct. decided that it need not obey an unconstitutional Act of Congress à
Constitution will control over another act or law of Congress.
- Cts. are not just puppets of the Legislature, they must have the authority to control the extent of the Congress’ Power to ensure it remains within the reaches of the Constitution.
Intent: Hamilton from Federalist No. 78: framers contemplated jud. review – through review the cts
vindicate the will of the people (Judges insulated from political pressures- guardians of Const)
Federalism:
McCulloch: Action arising out of violation of a State Statute that acted against federal law.
- Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied by the Necessary and Proper Clause (I, 8, [18]). (The enumerated powers given to the federal govt’ imply ordinary means of execution).
- The federal Constitution and the laws made pursuant to it are supreme and control the Constitutions and the laws of the states.
Martin v. Hunter’s Lesee: III, 2 [1], Intent of framers that the federal courts have jurisdiction over
state courts b/c it was obvious that federal questions would arise in state courts.
- Congress can supersede state laws
- Policy: Laws of the United States require national uniformity (prevent forum shopping and
ensure D’s rights) - otherwise would result in “jarring & discordant judgment”
II. JUSTICIABILITY UNDER ARTICLE III
For a case to be heard by the federal courts, P must pass all requirements for Justiciability: (asmrp)
1) Case must NOT involve a non-justiciable Political Question
2) P must have Standing
3) Case must not be Moot – litigant no longer has the same stake in the controversy (Exception: Capable of repetition but
evading Review – ie, Abortion Cases)
4) Ripe for Decision – Immediate threat of harm or already harmed (if state law not enforced than can’t bring suit)
5) Advisory Opinions – case must not require giving: III, 2 federal courts only have jurisdiction over actual cases and
controversies. Party must have suffered or be facing specific injury
A. Political Questions: the court will decline to hear a case on political question grounds only if it thinks
that the doctrine of separation of powers requires this, OR if it thinks that deciding the case would be unwise as a policy matter.
> does NOT mean that the federal cts will not decide a case that involves politics, or that involve
political issues.
* 2 of the main factors that are important in whether a case will be found to involve a political question are:
> all from Baker v. Carr ~ apportionment of voters~ equal protection
1) Commitment to another Branch: Does the case present an issue which has been committed by
the Constitution to another branch of the fed govt (to Congress or to the Pres.).
a. Text: Provision in the Constitution that commits the power to another branch
b. Policy: Balance of Separation of Powers – consequences of decision
c. Precedent: (Nixon) – Impeachment of a Fed Judge required “the Senate shall have sole
Power to try all Impeachments” – But only a committee decided the issue. The courts held this to be non-justiciable political question since the Constitution gave this power to the Senate to decide what a trial was.
d. Intent: Federalist 47 & 48 – Madison: Distinct Boundaries between branches to prevent
tyranny. But, recognized the system would have overlapping functions
e. Tradition/Policy: we want to attribute finality to the actions of each of the political depts.
2) Lack of Standards: No judicially discoverable or manageable standards by which a court
could resolve the issue. > Almost like saying no precedent…
Precedent: (Luther v. Borden) What constitutes a “Republican form of govt” guaranteed to the
states by IV, 4 is a political question b/c NO criteria by which a ct. could determine whether a particular govt’ was Republican.
3) Policy determination not meant for the cts.
4) Unusual need to stick to a political decision already made.
5) Potential for embarrassment from multi-declarations on one issue from various branches.
Political Question: NOT Political Questions:
- Questions regarding conduct of foreign relations - Legislative Apportionment ~ 1person=1vote
- When have hostilities stopped - Congressional Membership (unless arbitrary)
- Presidential Papers & communications - Nixon
- “Origination Clause” cases I, 7–raising revenue
* Importance of distinctions measured by underlying policy values & considerations *
B. Standing: P must have standing (significant stake in the controversy) to assert a claim.
1. Injury in Fact: usu. P must show that he himself has been injured (or is likely to be) –
> does not have to be economic harm – could be injury to “environmental well-being” (Sierra Club)
i. just being a “citizen” or taxpayer is not enough
ii. 3rd Parties rights (exceptions)
2. Injury suffering must be Concrete & Individuated
a. Must be imminent harm – a vague harm that may occur is not enough
b. Precedent: Lujan v. Defenders of Wildlife: harm claimed was distinction of species that
they plan on seeing in the future – not concrete enough- no plans
c. Individuated: can’t be same harm as suffered by every citizen. Organizations may sue, if:
i. members would have standing on their own
ii. interest’s being asserted must be related to the organization’s purpose
iii. case cannot require the participation of individual members (Hunt v. Wa Apple)
3. Action being challenged must be the “Cause in Fact” of the injury
a. “But For” cause of P’s injury–Injury would not have occurred but for the challenged action
&
4. Redressibility - P must show that a favorable decision in the suit in the suit will probably
Redress the injury to him
*5) If a Statute conveys standing, must prove the P is w/i the zone of interest protected by the statute
III. SEPARATION OF POWERS {look for a bill becomes a law or Appointment, or War/Treaty scenario}
Text: Section 1 of each of the first 3 Articles creates 3 distinct branches of federal government. Black
- look to which one of the powers is involved, that one must yield the power and do the function
- look to the text of the law?????
Policy:
Jackson: overlapping powers: is Congress in approval w/ President (3 situations-below):
White: broad approach: is 1 branch of govt’ seizing too much power under the law: is system of checks and balances lost: if balance is preserved then law OK
Black – Did the Action create or alter Legal Rights? > then Legislative in nature.
Intent:
Federalist No. 51 – (Madison): Ambition must be made to counter Ambition (dim view of human nature)
> Separate & Distinct exercise of powers are essential to the preservation of liberty
- Members of each department should be as little dependent as possible on those of others.
- Not possible for each branch to have an equal power of self-defense > In a Republican the Legislative authority necessarily predominates…
- Protection of the Minority view: Great importance in a republic to not only guard the people from
oppression by the rulers, but also to guard one part of society against the injustice of the other part
A. President Can NOT make the Laws ~ President Carries out the Laws
1) President has textual & implied powers through the Constitutional provision “shall take care that
the laws be faithfully executed…”
a. Enumerated Powers:
Black – looks to Text, plain meanings:
1. Is there a Law in effect that the President is Executing?? Youngstown
2. If not is the Power expressly Granted by the Constitution?? Korean War
> If both are NO then the President’s actions may be Unconstitutional Steel mills seized
* If the Action by the President creates or alters Legal Rights > then this Action is Legislative in
nature and may overstep the bounds of the Presidents Powers.
2) Congress’ Acquiescence: When Congress doesn’t take action this may expand the scope of the
President’s Powers:
Approve Jackson – The President’s powers are a maximum when his acts are authorized by Congress.
Silence - If NO Congressional input, the President has some areas of action independent of Congress.
Disapprove - If Congress Disapproves, then the President can only rely on his powers as enumerated by
the Constitution. ~ from Youngstown Sheet & Tube- concurrence
* Jackson’s Argument is more Policy based – What is the purpose of the Constitution? And
what is the purpose being served by the Cts. decision.
- “Workable Government” Presidents powers not fixed liked Congess~“law carrying out pwr”
3) Line Item Veto: NOT allowed or else the President would effective be making the law – violation
of the “Presentment Clause” of the Constitution. (Bills are enacted into laws by being passed by both Houses, then being presented to the President and signed by him) Clinton v.City of NY
B. Congress: ~ must follow Constitutional Bicameralism Requirements { I, 7 [2] }
Text: 1) One House Legislative Veto’s are NOT permitted: Congress may not Reserve in itself an
Executive Power (INS v. Chada)
Intent: 2) 4 Provisions in the Constitution exist where 1 House may act alone & this does not include the Legislative Veto – Intratextual Argument: Look at whole document – Since Congress
expressly included 4 they impliedly excluded all others. (INS v. Chada)
Policy: 3) Counter Argument: the Legislative Veto does not alter the actual authority between the President & Congress. Indispensable Political Invention to deal w/ changing times, etc..
Tradtion: Did it already comply w/ the Bicamerlism requirement?
C. Congress – Delegation:
1. Congress may delegate some of its power to the President or the executive branch.
> Gives Federal Agencies the right to formulate Regulations for interpreting & enforcing
Congressional Statutes. May not be excessive delegation.
D. Declaring & Waging WAR
1. Only Congress can Declare War. The President can commit our armed forces to repel a
sudden attack, but he cannot fight a long-term engagement w/o a Congressional Declaration of WAR.
E. Treaties & Executive Agreements: President has power to enter treaty w/ (2/3) vote of Senate.
> S. Ct. has held that the Constitution Impliedly gives the Pres., as part of his foreign affairs
power, the right to enter into “Executive Agreements” – w/o 1st obtaining Congress Consent
> A President may issue an order settling legal claims when the order is ancillary to major
foreign policy issues & Congress acquiesces (Dames & Moore v. Regan)
F. Formalists: believe that sep of power is governed by relatively clear rules that mark separate spheres of authority
Functionalists: believe in a more fluid approach that prohibits undue mingling of functions but allows some overlap
& is more receptive to changing boundaries to deal w/ changing times
Appointment & Removal of Executive Personnel ~ (Bowsher v. Synar)
1. President Alone may Appoint “Principal / Superior” or high-level federal officers.
> Congress can NOT appoint “Inferior” or lower-level federal officials, but it may say which
of 3 other entities may (Pres, Cabinet, or Court)
- Superior v. Inferior – Does the position make policy?
* Congress has NO Power to Appoint federal executive officers. (Buckley v. Valeo)
appointment of elections commit.
2. Removal: President has the power to remove federal executive officers. Pres may rmove
any executive appointee without cause. ie, an Ambassador
> President must have cause in two situations to remove:
1) an officer who is appointed pursuant to a statute specifying the length of the
term or office; or,
2) an officer who performs a judicial or quasi-judicial function
> (ie, all executive agency heads, like NLRB, FTC, SEC, FCC, FRB)
a. Congress may NOT remove an executive officer (Bowsher) no matter if the officer is a
principal or inferior one.
> Congress may limit the power of the Pres. to remove an officer, If Congress
specifies a term of office & says removal is allowable only for cause (Humphries)
- ie, Morrison v. Olson – spec prosecutor only removable for cause or inability…
* Congress may remove any executive officer by impeachment
IV. COMMERCE CLAUSE
A. The Commerce Power of Congress
*On exam if Congress is doing something, 1st ask: “Can what Congress is doing be justified
as an exercise of the commerce power?” – Most of Time= Yes
1. If a State Law Conflicts w/ a federal law/act Regulating Commerce, the Congressional Act is
controlling – via the Supremacy Clause. (Gibbons)
2. Congress has power to regulate commerce among the States (Gibbons)
- (all activity affecting 2 or more states).
> Textually: Fed Pwr can be applied to any matter that affects the external concerns of the
nation (foreign Nations) & to internal affairs which affect the States generally (I, 8, [3])
3. Affectation Doctrine: Congress may Regulate Intrastate Commerce activity that, in the
Aggregate, Substantially affects Interstate Commerce (see modification below!!) > dictum
4. Old Law (xtra-credit) – Concerned heavily w/ States Rights and not allowing an all powerful
federal legislature. Fear that the power over local matters would be eliminated & no more freedom of commerce:
- In Hammer Ct. struck down a Child Labor Act, held that making of goods & mining of coal were not commerce, even if these things were to be later shipped in interstate commerce.
B. Expansion of Congress’ Power
- Summary of the modern view: 4 Broad Categories of activities which Congress can Constitutionally Regulate under the Commerce power: (CIA’S)
1. Channels: reasonably related to highways, waterways & air traffic, even though intrastate
2. Instrumentalities: people, machines, and other ‘things’ carrying out commerce (ie truck safety)
3. Articles in Interstate Commerce:
** 4. “Substantially Affecting” Commerce:
++ from (Lopez)
Affectation Doctrine: Did Congress have a rational basis for believing that the intrastate activity
being regulated had, in the aggregate, a Substantial Economic effect on interstate commerce?
- If so, the act will be Constitutional
a. In the Aggregate – combination with other activities – doesn’t matter if the particular
instance directly effects interstate commerce, so long as the instance is part of a general class of activities that, collectively, substantially effect commerce.
ie, Congress can control a single farmers production of wheat for home consumption, b/c the cumulative effect would be felt on supply & demand nation wide. (Wickard)
b. Substantial – requires that the economic effect can NOT be too Attenuated
> Do you have to pile inference upon inference to reach the conclusion that the area regulated has a substantial effect on commerce?
Examples:
1) Heart of Atlanta: Civil Rights Act of 1964 upheld. Hotels that discriminate in the
aggregate have a tremendous economic effect on the nation, prevents people from traveling and spending money…
2)
D. Limits on Congress’ Power:
1. If Activity (Intrastate) sought to be Regulated is NOT Commercial in Nature, then the Ct. will
require a pretty obvious connection between the activity & interstate commerce.
2. If NOT Commercial – not enough that Congress had a “rational basis”. The Ct. will not give
much deference to Congress’ belief – they will look at the issue for themselves.
> Federal Govt’ has the burden to prove that the activity in fact affects interstate commerce!
3. Traditional Domain of States: If the activity being regulated has traditionally been the domain of
the states, and as to which the states have expertise, the Court is less likely to find that Congress is acting w/i its Commerce power. (ie, education, family law, criminal law)
> Exception: National Solution required – outweighed by a showing that a national solution is
needed to address a problem of national scope, ie, environmental reg where 1 State’s choice will severely effect others.
Examples:
1) Lopez: Congress makes it a federal crime to possess a firearm in or near a school,
regardless of whether the particular gun had ever moved in interstate commerce.
- Ct. Held = Congress went beyond Commerce power – the link between gun
possession in a school & interstate commerce is too tenuous to qualify as a “substantial effect”
> J. Thomas – to allow, the “substantial effects” has almost swallowed up federalism.
- should not give the govt’ a blank check to regulate everything under the guise of the Commerce Clause
2) Morrison: Any woman of a violent gender-based crime may bring a civil suit against the
perpetrator in federal court.
- Ct. Held = Congress went beyond Commerce power. Although it may be true that
some women’s fear of gender-based violence dissuades them from working or traveling interstate, gender-based violence is NOT itself a commercial ativity.
> Connection is too Attenuated!
* Intent of Framers: was to …
* Tradition: since Old Law…
* Policy: As Thomas pointed out the Commerce Clause could easily be “swallowed up” by a broad
interpretation of the “Substantial Effects” Analysis… Must place reasonable limits on National power to ensure Federalism is maintained.
C. Spending Power of Congress: If the thing that Congress is enacting can NOT be legit under the
Commerce Clause, may it be under the Spending Clause??
1. Text: Congress may spend to “provide for the common defense & general welfare” (I, 8, [1])
2. Spending may be for any public purpose – not merely for the accomplishment of other enumerated
powers. (Bill of Rights still applies – can’t condition welfare on non-criticizing policy)
3. Regulation Through Spending: Congress can use its “Spending” power to “regulate” areas, even
where it otherwise has no power to regulate the area, by requiring entities that accept
government money to act in a certain manner.
a. Conditions placed upon spending legislation usu justified under “Necessary & Proper” CL
b. General Welfare: not enough for Congress to pass legislation just to promote Gen Welfare,
- A condition that Congress must exercise its Spending Power for the Gen Welfare…
- Law of Spending Clause:
1) Spending must be in pursuit of “general welfare” – must be a connection or nexus
> Cts. usu defer to the judgment of Congress
2) If Congress desires to condition the State’s receipt of Federal funds it must do so
unambiguously
3) Might be illegitimate if NOT Related to the Federal Interest in particular national
projects/programs.
4) Other Constitutional provisions may also provide an independent bar to the conditional
grant of federal funds (freedoms, Bill of Rights)
* 5) How much is too much? Is the act Coercive or NOT?
- Inverse Relationship: (1/relatedness = 1/funds withheld %)
Examples:
1) S. Dakota v. Dole: Conditional funds for federal highway improvement upon
the State’s regulation against allowing a drinking age less than 21.
2) Spending Power Struck Down by: NY v. US – required states to meet certain requirements
for the disposal of radioactive wastes, including to take title if others not met.
> The federal govt’ may NOT order a state to enact particular legislation through the
Spending Clause, this goes beyond simple coercion.
> Congress may only encourage the state to regulate a certain way it can’t force it.
E. Limits on the Commerce Power of the States
1. Dormant Commerce Clause Doctrine – The mere existence of the federal commerce power
restricts the states from discriminating against, or unduly burdening, interstate commerce.
> Congress has power to supersede or preempt State Regulation
> Congress may adopt legislation that would allow states to violate the Commerce Clause
- or Congress may prohibit States from adopting legislation iaw the Com Clause
Where Congress has NOT Acted /is Silent ~State Limits in the Regulation of Interstate Commerce:
1) No Discrimination against Interstate Commerce
2) No Undue Burden on Interstate Commerce
* The Dormant Commerce Clause is a 2 Phase Test or Analysis.
1. The Threshold Question is what type of Law has the State Enacted:
a. Protectionalist State Laws
b. Discriminatory State Laws
c. Evenhanded Legislation
2. Then after deciding what type of law has been enacted the standards for that
Category are Analyzed against the facts of the case to determine if the Law violates the Commerce Clause.
Phase 1: Category or Type of Law? (on Exam State Law will be vague & must analyze all 3)
1) What is the Intent or Purpose of the Law? - what effect has the law had since being passed?
2) What is the real Intent behind the Law that the State may not admit to?
3) Is the Law meant to Protect State Citizens or Resources? – Protectionist
4) Are IN State & OUT of State people discriminated against equally? – Flow of Goods?
5) How does Precedent Help us decide where this State Act should fall? (see examples)
Phase 2: Standards of Analysis for Each Type of Law:
a. Protectionalist State Law
1. Invalid Per Se (analysis over)– Usually Economic Protectionalism
2. Clearest Example of such a Law is where the law overtly blocks the flow of
interstate commerce at a State’s border.
3. Laws designed to protect local businesses against interstate commerce or laws
seeking to preserve the resources of the state – limiting access to In-State products
Examples:
1) A State can NOT place a surcharge on out-of-state milk to make that milk as
(or more) expensive as milk produced in the state (West Lynn)
2) A state can NOT exempt local business or products from taxation or
regulation that it seeks to apply to out-of-state businesses or products that come into state.
3) A State can NOT prohibit in-state owners of ground-water from selling &
exporting the water they own to persons in other States.
4) A State may NOT prohibit private dumps from accepting out-of-state
garbage or surcharge such waste (Philly v. NJ)
b. Discriminatory State Laws
1. Presumed Unconstitutional ~ Burden on the State to Prove Otherwise
2. Analysis:
i) Do the Benefits (non-economic) outweigh the Burdens
ii) Is there a Less Discriminatory Alternative?
3. Category: Are the flow of goods/commerce being affected? If not, then not discrim
i) Discriminatory on Its Face: Bait Fish – State Law prohibiting importation of
live baitfish upheld as Constitutional (State met there burden).
> Ct. Held = Benefits outweighed burdens (furthered an important non-
economic interest & there was no reasonable alternative)
ii) Discriminatory in Effect: WA Apples – Apples sold in NC not allowed to
have a grade from other states. Law was facially neutral but had effect of discriminating against out-of-state products (b/c Carolina apples suck & WA good).
- Kassel – A state safety regulation (limit of 55ft trucks) will be Unconstitutional if its
asserted safety purpose is outweighed by its degree of interference w/ interstate commerce.
c. Evenhanded Legislation
1. Presumed Constitutional ~ Burden on Challenger to Prove Otherwise
2. Non-discriminatory State law imposing a burden on interstate commerce. An
evenhanded law will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate (non-discriminatory) local interests. Balancing Test.
> Law regulates EvenHandedly to effectuate a legitimate local public interest, the effect on interstate commerce is only incidental.
3. Analysis:
i) Do the Burdens clearly outweigh the Benefits (Health/Safety…):
ii) Is there a Less Burdensome Alternative? – Are less restrictive alternatives
available (ie, city wanting to protect milk & requiring bottling near city – other ways that are less burdensome could easily be found)
4. Category:
i) Look for cases legitimately concerned w/ Health, Safety, Welfare
Regulations & that do NOT materially restrict the free flow of
commerce across State Lines !!!
ii) If a need for a national Uniformity, the Burden may clearly outweigh
benefit…. do surrounding States proscribe to different regs?
d. Market Participation Doctrine (Exception to the DCC) (not a lot of time spent, not on exam)
* States may discriminate when they act as participants in the market, but NOT when they act
as Regulators. (Even Protectionist Laws could be Constitutional)
- Nothing in the Commerce Clause prevents a State from participating in the market &
exercising the right to favor its own citizens over others.
* Distinction between Regulation v. Market Participation
- Downstream Restrictions have greater regulatory effect than do limitations on
the immediate transaction or initial disposition of goods.
- ie, Restricting the Post Purchase (of State controlled goods) Activity of the
private purchaser is a more of a NO-GO.
Examples:
1) Alaska Trees - State may impose burdens on the market it participates in but must
be narrowly tailored- Unconstitutional for Alaska to require purchasers of state owned timber to process it in Alaska – reach too far.
* State’s may not impose conditions that have a substantial regulatory effect outside of that particular market – unless marker very narrow.
2) SD Cement Plant – selling cement below cost to SD contractors (once cement is out
of hands of SD they could not regulate any further) – Constitutional
– like a subsidy
* Constitutional to only Deal with IN State Companies (but after the deal that is the limit).
2. Preemption - VI [2] = Federal Law Supreme
* Whether a State Action/law is Pre-empted by Federal Law is one of Congressional Intent
> Key is the Intent of Congress – Did Congress Intend to Preempt State Law.
A. To Determine Intent, Look to:
1) Language of the Statute – Express?
2) Purpose of the Statute – is something that would allow both laws to exist?
B. Three Types of Preemption:
1) Express Preemption: Statute contains a provision specifically referring to preemption &
indicating which state laws the national statute supplants.
2) Field Preemption: Scheme of Federal Regulation is so Persuasive as to make it
reasonable to infer that Congress intended to occupy the field.
3) Conflict Preemption:
i) Compliance w/ both Federal & State Regulations is a physical impossibility,
ii) Frustrates the Purpose of the Federal Law
A. Historical:
B. Procedural Due Process
{assume the govt’ can take the action & the issue is whether there should be a hearing}
2-Step Analysis:
1) is there a liberty or property interest involved?
2) if so, what procedure is due before that interest can be taken away.
14th Amend for State: 5th Amend for Federal
Text: Nor shall any State deprive any person of life, liberty, or property without Due Process of Law
Tradition: Due Process contemplates fair process/procedure, which requires at least an opportunity to
present objections to the proposed action to a fair, neutral decisionmaker.
*To Determine if Due Process Requirements Apply in the 1st Place, must look to:
- The Nature of the Interest at Stake
Property: There must be a legitimate claim or entitlement to the benefit under state/fed
law (Roth) – extend well beyond ownership of chattels or money
- To have a property interest there must be more than an abstract need or desire for it.
a. Public Education: prop interest when mandatory – thus significant suspension require PDP
b. Welfare Benefits: prop interest if she has previously been determined to meet the statutory
criteria.
c. Continued Public Employment: If there is a statute or ordinance that creates a public
employment K, or some clear practice or mutual understanding that an employee can be terminated only for ‘cause’ then there is a property interest (if at ‘will’ there is no property interest).
Analysis:
1) Whether entitled to a hearing – whether life, liberty or property is at stake
(Property = Denial of Benefits, etc….)
a. When the STATE Govt’ Intentionally Acts to deprive an individual of property.
- NO right to individual adjudication if govt’ acts generally
b. Must be Intentional Deprivation & NOT Negligent Deprivation by a govt employee
c. “Deprivation” – Only when the govt’ affords NO Remedy or Inadequate remedies
may a deprivation result.
2) When entitled to a hearing – when hearing takes place.
3) What Procedural Safeguards must be followed or type of Process:
a. Must be a Fair Process, this varies according to the circumstances of the deprivation
A court will weigh: (Mathews)
1) The importance of the individual interest involved;
2) The Value of specific procedural safeguards (Risk of error) to that interest; &
3) The Govt’ Interest in fiscal & administrative efficiency – burden on Govt’
Precedent:
1) Welfare Benefits: Due process requires an evidentiary hearing prior to termination of
welfare benefits. Once interest or entitlement is created must have procedural safeguards. (Goldberg)
> recipient must receive timely & adequate notice of the reasons for the proposed
termination, right to confront adverse witnesses, etc…
2) Public Employment: Public employee subject to removal only for “cause” (ie, has a
property interest in his job) must be given notice, & a pre-termination opportunity to respond. (Cleveland)
> Before termination only needs a fair system of notice, opportunity to respond to the person making the termination decision, and a subsequent evidentiary hearing (w/ reinstatement available if employee prevails)
3) Disability Benefits: No prior evidentiary hearing is required as long as there is prior
notice to the recipient, an opportunity to respond in writing & a subsequent evidentiary hearing. (Mathews v. Eldridge)
1. Historical Background: The Liberty of Contract (What is this liberty of K you speak of?)
- West Coast Hotel ended the theory of economic substantive due process when it upheld a
statute setting a minimum wage ~ death of the liberty of K.
* Certain fundamental rights are protected under the 14th Amendment of the Constitution. If these rights are denied to everyone, then it is a Substantive Due Process Problem.
1st Question is whether there is a FUNDAMENTAL RIGHT that is being violated:
How are Fundamental Rights Determined? ~ may be in the way you phrase the right ~
1) Implicit in the concept of ordered liberty?
2) So Deeply rooted in the nation’s history and tradition. J. Powell (Moore v. E. Clev)
3) A Principle of Justice so rooted in the tradition & conscious of our people as to be
ranked as fundamental.
4) Fair & enlightened system of justice would be impossible without them.
* Line of cases tends to delineate a sphere of interests – which the Ct. has denominated as
“privacy” implicit in the “Liberty” protected by the 14th Amendment.
- Core of this Sphere = right of the individual to make for himself the fundamental
decisions that shape family life:
&nb