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Constitutional Law I
University of Mississippi School of Law
Hall, Matthew R.

Procedural Due Process
Procedural Due Process—“No person shall….be deprived of life, liberty, or property, without due process of law……” Says govt. may take the right from you—says can take life, liberty, or property—How? Can do it as long as govt. gives you Due Process of Law
            Full Due Process—Civil Hearing–Notice of proceeding (notice of charges and evidence), Opportunity to respond. Counsel, Decision on the record, Public, Reasoned decision, Neutral adjudicator, Formal hearing, Opportunity to present evidence/witness, Opportunity to confront & cross-examine, Face-to-face proceeding—if all this required a person can’t raise a Constitutional Due Process claim. Questions arise re: how much procedure is enough—Issues may arise during a trial or when an administrative agency is taking action regarding your life, liberty or property (protected interest).
A procedure is due to a constitutional person with a protected interest.
Components of THRESHOLD TEST:
            In order to raise a procedural due process claim, an individual must show that they are a 1) person, 2) who has suffered a deprivation of a 3) Constitutionally protected interest.
Process= when and what kind. When—before or after a decision (ex. arrest—procedure is after—AFTER IS RARE, USUALLY PROCESS IS REQUIRED BEFORE).
PERSON—must be a constitutional person: which means someone inside U.S. includes aliens in U.S. or abroad that has significant ties to U.S. (ex. citizens who have temporarily gone abroad, applies to alien tourists while they are physically in U.S. but not once they leave).
Corporation is considered a Constitutional person
If not physically in U.S. have to have in rem jd w/ sufficient minimum contacts.
DEPRIVATION—Taking something away from someone through a 1) Deliberate decision, 2) Individualized decision. (govt. comes at YOU intentionally).
Deliberate Decision:
Can’t be a deprivation through legislative decision (b/c elected and give up this right voluntarily).
Has to be a decision made after deliberation—not reckless, not accidents
Must be logical—Process is possible only when there is time for deliberation
Individualized Decision
When decision that affects INDIVIDUAL OR A SMALL GROUP based on particular grounds (due process clause is relevant) –due process clause irrelevant if based on legislation that affects people across the board.
Ex. Deprivation needs to be deliberate and individualized—not statutory decisions about large group of people—can’t raise Procedural due process clause about a statute that affects society as a whole or large group (if large group then maybe EPC).
PROTECTED INTEREST—life, liberty, or property (less obvious things are hard to figure out—where to focus)
Focusing on whether it’s a right (liberty or ppty—that’s protected by DPC) or whether it’s a privilege (not protected b/c revocable at any time for any reason) may not be helpful today b/c so many things in society that were initially privileges, now look like a vested right (Driver’s License—originally privilege b/c other modes of transportation but today so central to life it’s viewed more as a right).
Privileges can become an entitlement and thus a right
When there is a Brutal Need or Grievous LOSS (ex. Welfare—not for past but for continuing receipt of check in future—ex. Goldberg v. Kelly)—only applies to families with children. 
Right to work state—debate over whether have right to have hearing prior to being fired once employed (implicit)—if govt. makes an explicit promise to hold hearing or set of procedures tehn Explicit Entitlement to that right.
Explicit Entitlements: Board of Regents v. Roth—definite criteria to determine government benefit claim
Implicit Entitlement: Perry v. Sinderman—govt. didn’t state explicity but implied right to continue to receive the benefit of employment.
·         Modern Version of Privilege v. Right: Protected Interest where a person has a legitimate reasonable expectation of continuing receipt of benefit.
o        Only entitles them to a hearing to determine whether requirment is met (however if tell you only 36 mos. then only 36 mos.)
o        Govt. has to say or do something to counter what they told you in beginning.
·         Liberty Interest—Easy Cases—Procedural Requirements
o        Corporal Punishment—spanking at school—some set procedures such as requiring 2 people to be present before this type of punishment can be inflicted. Others sanction all paddlings—give deference to students—want money spent at school in classroom rather than on trials. 2 Person procedure meant to be a procedural check b/c it has to occur quickly and want it to occur w/o lots of headache and costs.
o        Civil commitment—Liberty is completely lost (confined to mental institution against your will and no set end date). Requires procedures beforehand—Clear and convincing evidence that one is danger to self and others
·         Liberty—Harder Cases
o        Reputation—Wisconsin v. Canstantineau—name posted on public drunk list—Court said reputation injury, but in Paul v. Davis—Shoplifters list—no damage to reputation. D’s want to get notice and chance to defend themselves in court (1st—led to inability to buy boos, impacted secondary interest while in Paul it was just stigma (embarrassment) therefore no secondary interest.
o        Test=Stigma Plus (have to have stigma + some other detriment)
o        Firing as an injury to your reputation—not mere firing
§         Siegert v. Gilley= FIRING + (ex. derogatory stmts. Made in news conference about you)
Process (When and What Kind)
First have to meet all 3 criteria of threshold test (person, deprivation, protected interest)
*Full Due process is not always required:
Civil: no genuine issue of fact b/c reasonable minds couldn’t differ (summary judgment)
Criminal: may plead guilty and Waive right to a hearing.
Flexible Due Process—procedures picked based on type of due process the circumstances demand. Ex. death penalty then lots of procedures required; maximum procedures required when life is at stake. (Costs-Benefit weighing) (ex. jury trial—procedures only picked if something to be gained)
·         Want to know if there is risk of error and will add extra procedures only if they will reduce error.
1.      TEST: Mathews v. Eldridge— helps determine how much procedure is required–**Test weighs these factors against one another (Cost v. Benefit weighing)
o        Nature/ importance of the private interest at stake (ex. compare dl to civil commitment, smaller or less important the less procedures are needed)
o        Risk of erroneous deprivation under existing procedures and the reduction of that risk by requiring additional procedures
§         Ex. think of having 12 jurors. 3 is danger but more than 12 may not be any better.
o        Governmental Interest in using existing procedures/increased costs and lost efficiency by requiring additional procedures.
§         Talking about govt. as a system rather than prosecutor (confusing—think of as “public interest” instead
The government always wins the 3rd factor (not that important b/c they always win—b/c claim it will costs more money). If 1st factor is great, then almost always add extra procedure. The more important the private interest the better the argument for additional procedures. The greater the risk of errors in current procedures, the better the argument for additional procedures. **Test often used when govt. creates a new administrative agency and govt. lets them make decisions. When sue lots of p’s argue extra procedures should be added or it’s a d

l Effects test (Justice Roberts switch in time that saved nine)
Substantial Effects test—Congress can regulate intrastate activity that has a substantial effect on interstate commerce. (simplifies)
Then Wickard v. Filburn—guy growing more than allotted amount of wheat for self-consumption not to sell. Court upheld the law which regulated his growth of wheat. 
Expansion of the Substantial Effects test—regulation of one individual’s economic activity is allowed b/c of the potential AGGREGATE EFFECT.
If looked at cumulative effect of decisions to grow wheat at home it would be a substantial effect on interstate commerce. Congress can regulate a class of activity that has a cumulative substantial effect on commerce. 
Rational Basis Review –defer to Congress
Under this test, everything could potentially have an effect on Commerce (ex. Divorce b/c go from having 1 to 2 of everything)—everything in aggregate effects commerce in some way.
Then, Lopez—Modern Doctrine:
Congress can regulate and protect interstate economic activity
1)      Channels of interstate economics (postal service, roads, aviation, internet, etc.)
2)      Instrumentalities of interstate economics (credit cards) 
**Ex. Channel is road and instrument is truck.
§         Congress can regulate intrastate activities with a substantial effect on interstate economics.
1)      No more distinction between inter and intra state activity
2)      No more distinction b/t production (mfg.) and commerce.
·         Majority—when activity in question has a distant effect on interstate commerce with no clear economic, substantial effect (non-commercial/non-economic activity), the court will EXAMINE to ensure the activity has some substantial, causal effect on Commerce.
·         Concedes some connection but it is DISTANT (if law had banned all revolvers then would pass substantial effects b/c Congress can ban their transportation across state lines but in this case it didn’t ban all only in proximity to schools)
·         This is not rational basis review—no deference to Congress. (probing to determine whether substantial effect on interstate commerce)
o       Only time see probing is when there is NO OBVIOUS CONNECTION to interstate commerce
o       Congress can ban something big but not something small (ex. If Congress can ban all why can’t ban something smaller? AT EDGE (only a few cases doing this)—the more distant the less likely to determine it has a substantial causal effect. 
o       Large majority of what Congress does under CC still valid; only a small group of issues is not allowed.
o       Then Morrison—strikes down “VAWA” to preserve federalism (violence against women act).
1)      Need to enforce an outer limit on commerce clause power to preserve federalism (not as nice and tidy).
Dissent argues majority being activist (subjective and ad-hoc)—each justice evaluating distance from own perspective (dissent say this is like child-labor and oleomargarine)—liberal judges who use subjective and ad hoc ideas are accusing conservative judges of