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PROCEDURAL DUE PROCESS ANALYSIS

as applied to the federal government through the 5th amendment and the states through the 14th amendment

IS THERE A STATE ACTOR?


YES

NO

Private actors are generally exempt from PDP requirements No violation of procedural due process

IS THERE INTENTIONAL DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?


YES
Do the facts involve either An at will public employee or Harm to reputation?

NO

YES

NO

There is no property interest in unilateral expectation of employment Harm to reputation, standing alone, does not implicate deprivation of liberty or property triggering Due process

WAS THERE NOTICE AND A HEARING WITH AN IMPARTIAL DECISIONMAKER?


NOTICE Did it tell what rules are and what was allegedly violated? HEARING Opportunity to rebut governments case? IMPARTIAL DECIONMAKER Did IDM have no interest in the outcome?

NO

Per Se violation of procedural due process

YES

WAS THE SCOPE OF THE EVIDENTIARY HEARING ADEQUATE?


BALANCING TEST (Subjective) Importance of interest deprived Risk of erroneous deprivation of the interest Burden or cost associated with using a new procedure

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SUBSTANTIVE DUE PROCESS ANALYSIS


Applies to unenumerated rights in the 9th as applied to the federal government through the 5th amendment and the states through the 14th amendment

APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF ALL PERSONS WITH RESPECT TO A SPECIFIC ACTIVITY:

Fundamental Right?
marry, divorce, and maintain children Family Relations Contraceptives Right to Die Refuse medical care Private consensual sexual activity Obscene material in privacy of home (not child porn) Abortion

NO

Not Fundamental?
Economic regulation Or any other nonfundamental right

YES

YES
APPLY RATIONAL BASIS Challenger has burden Legitimate state interest (To protect health, safety, and morals of adults and children) o Morals cannot stand alone Means are rationally related (but not necessarily the best way)

APPLY STRICT SCRUTINY Government has burden Compelling government interest? o Morals cannot stand alone Narrowly tailored and least restrictive means? (best way and no reasonable alternative)

YES
APPLY PP v. CASE TEST Pre-viability? State can regulate But no undue burden (substantial obstacle) on mother to get abortion -24 Hr waiting period, requirement by license Doctor Post-Viability State can ban o Health and Safety Exception -Never need spousal consent. -Minors need judicial bypass option. -No government duty to subsidize abortions.

YES

NO

YES

LAW IS VALID

LAW IS INVALID

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EQUAL PROTECTION ANALYSIS


as applied to the federal government through the 5th amendment and the states through the 14th amendment

APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF SOME PERSONS WITH RESPECT TO A SPECIFIC ACTIVITY:

SUSPECT
(Discreet, Insular minorities)

QUASI-SUSPECT
Gender Illegitimacy Undocumented alien children

NON-SUSPECT
All others Age Sexual orientation Mental Disability Undocumented Adult aliens Poverty Anything not in another classification

Race Ethnicity/National Origin Alienage Except Rational Basis Test for o Government function of state that has direct impact on public policy (employment, licensure) o Congressional action on Feds (plenary power) Affirmative Action Based on race (gender is intermediary scrutiny) o Employment Remedying past or present discrimination in a particular institution o Higher Education Individual review to achieve diverse student body

INTERMEDIATE

Government has burden Exceedingly persuasive interest for gender? OR Important interest for illegitimacy? OR Substantial interest for undocumented alien children AND Government interest substantially related to achieving means?

RATIONAL BASIS

Challenger must prove NO: Legitimate state interest?


o Government loses if purpose is animus (desire to harm a politically unpopular group), thus interest is not legitimate)

Means are rationally related (but not necessarily the best way)
o Government loses if means are arbitrary or irrational

STRICT SCRUTINY
Government has burden Compelling government interest? o Morals cannot stand alone Narrowly tailored and least restrictive means? (best way and no reasonable alternative)

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