State Action, Due Process

Question 1

State action

Answer 1

1. Excepting 13a, Constitution applies only to government action. Private action may be found in 3 narrow circumstances:
2. Traditional and exclusive government function;
3. Entanglement/involvement with government (hard to see where gov’t stops and private begins, sufficient nexus, inexorably intertwined);
4. Coercion or authorization (depends on public power to carry out, court order of private covenants and property attachments).

Question 2

Due Process Clause

Answer 2

1. 5a and 14a provide that government shall not;
2. take individual’s life, liberty, or property without due process of law;
3. goal is to protect Fundamental Fairness;
4. Substantive and Procedural.

Question 3

Substantive Due Process

Answer 3

1. Guarantees Fairness of law and that laws will not be unreasonable or arbitrary;
2. Protection depends on whether
3. law is depriving Fundamental right or
4. government actions so Egregious that they, with deliberate indifference, shock the collective conscience.

FFF-DIES

Question 4

Fundamental right (substantive due process)

Answer 4

IPAD-CAMPER

1. Implicit in the concept of ordered liberty;
2. privacy
3. autonomy of individuals and
4. deeply-rooted personal choices
5. if met, strict scrutiny applies
6. economic, social welfare, and abortion not fundamental

CAMPER
Contraceptives
Abortion
Marital relations
Procreation
Education
Relations (familial, parental, custody), Religion

Question 5

Strict scrutiny (substantive due process)

Answer 5

1. Government burden to show
2. Compelling interest
3. necessary and narrowly tailored.

Question 6

Rational basis (substantive due process)

Answer 6

1. Challenger has burden
2. No set of facts
3. rational relationship to
4. legitimate state interest.

Question 7

Caveats to strict/rational basis for substantive due process

Answer 7

1. Life-saving medical - competing interests, balancing
2. Legitimacy = not a legitimate interest (not enough for even RB)
3. Abortion now RB.

Question 8

Procedural Due Process

Answer 8

1. Adjucative decisions deprving of LLP
2. Protected interest?
3. what Process due P?
4. Pre vs. post under Mathews v. Eldridge
5. Core protections: notice, opportunity, neutral decisionmaker

APPPC

Question 9

Property interest (Procedural)

Answer 9

1. Legitimate claim of entitlement under law
2. Unilateral not enough
3. More than abstract need or desire
4. Expectation of continuance.

LUME

Question 10

Liberty interest (Procedural)

Answer 10

1. Intentional deprivation
2. Physical freedom
3. Deeply-personal (1a, fundamental)
4. Reputation must have stigma+ (Goss v. Lopez - school suspension).

If you Please, Don’t Restrain

Question 11

Mathews v. Eldridge

Answer 11

1. Private interest at stake
2. risk of erroneous deprivation and value/cost of safeguards
3. government interest and fiscal or adminstrative burdens
4. pre- vs. post-deprivation (emergency, public safety, balancing).