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Constitutional Law II
WMU-Cooley Law School
Shafer, Chris

A.      Description
1.       Art. IV: A Citizen from state X who visits state Y has a Qualified (Only Fundamental Rights) rights to be treated equally with Citizens of state Y (Anti-discrimination against non-residents)
i.         Article IV PIC ONLY operates with respect to rights that are sufficiently fundamental to national unity
°          Examples of Fundamental Rights:
~         Right to be employed, right to practice my profession, right to engage in business, right to be taxed equally, right to equal access to healthcare, right to own property
·          Recreation (hunting, fishing, tennis courts, etc.) is NOT a fundamental right
·          Unless, the out-of-stater claims that he wants to do the activity as a profession
ii.        Distinguish PIC from NCC
°          No “Market Participant” Exception
°          PIC Only applies to US Citizens (Aliens and Corporations NOT protected)
°          Congress Enactment of Fed statute does NOT excuse a law that violates PIC
°          NCC prevents economic protectionism, whereas PIC protects people’s rights
°          Remember, a violation of someone’s fundamental right is Strictly Scrutinized by Courts
B.       Article IV PIC Analysis:
1.       Does statute discriminate against ind’ls based on State Citizenship/Residence? If so,
a.        Language MUST specify
2.       Does the discrimination concern a “Fundamental Privilege”? If so,
3.       Is the discrimination Justified? To be justified, State must meet 2 sub-parts:
a.        Does the State have a substantial reason for discriminating? AND
b.       Is the State’s discrimination substantially related to that reason?
i.         Is there any less discriminatory alternative? If so, Not Justified
A.      Incorporation
1.       Incorporation of the bill of rights (14th Amendment) into 5th amendment of state due process
2.       Makes the states subject to same scrutiny as federal gov’t for suspect classifications
B.       Review of Procedural Due Process
1.       Due process claim always accompanies EP Clause
2.       5th (Due Process Rights against Fed Gov’t) & 14th (Due Process Rights against States) Amendments
a.        Three Rights: Due Process, Equal Protection, and Right to Privileges and Immunities
i.         The gov’t. may lawfully deprive a person of life, liberty, or property ONLY IF it follows reasonable procedures to minimize the risk of an erroneous or unfair deprivation;
–        Key Elements of Procedural D.P:
°          Notice (written or verbal);
°          Opportunity to respond (either in writing or in a hearing)
°          Neutral Decision-maker or Tribunal
b.       Procedural due process only triggered if there is a deprivation of a life, liberty, or property interest:
i.         Simple negligence is not enough;
ii.        A de minimis or insubstantial impairment of an interest will not trigger procedural due process;
iii.      Do NOT confuse substantive due process test (e.g., rational basis or strict scrutiny) with procedural due process
c.        What is a property interest?
i.         Created by state or federal law
ii.        Includes things you may not think of, such as:
–        Welfare and other public benefits;
–        Public employment;
–        License to engage in trade or profession;
d.       What is a liberty interest?
i.         Includes fundamental rights and other liberty interests not subject to elevated scrutiny.
e.       Tests used to determine whether there is a protected property interest
i.         Current test: Whether gov’t has done something to create entitlement to a property interest. Roth v. Board of Regents
3.       Procedural Due Process Analysis (3 Questions):
a.        Question 1: Is there a life, liberty, or property interest?
i.         If no, then no procedural due process implications
ii.        If yes, go to Question 2
b.       Question 2: Has there been a deprivation of that interest?
i.         If no, then no procedural due process required
ii.        If yes, go to Question 3
c.        Question 3: What process is required?
i.         Pre-deprivation or post-deprivation process
ii.        Formality of process:
–        Full evidentiary hearing versus something less
iii.      Test is 3-part Mathews v. Eldridge balancing test:
–        Nature/importance of the individual interest;
–        Risk of deprivation under current procedures and benefit of additional procedures;
°          Courts tend to be deferential
–        Nature of gov’tal interest
°          Does the Gov’t interest outweigh the burden of additional procedure?
3.       Liberty or Property Interest
a.        Importance of Interest
i.         Goldberg v. Kelly (1970)
–        Welfare recipients must be given evidentiary hearing before benefits terminated;
ii.        Bell v. Burson (1971)
–        State may decline to create property interest;
–        But once created, property interest (here, a driver’s license) may be essential to livelihood.
b.       Entitlement
i.         Board of Regents v. Roth (1972)
–        Non-renewal did not impair liberty interest:
°          No damage to reputation, standing or associations;
°          Nothing prevented professor from seeking other public (or private) employment.
–        No impairment of property interest:
°          To have property interest, must have more than unilateral expectation;
°          State did nothing to create expectation of continued employment
c.        How Entitlements are Created
i.         By express or implied policy
ii.        Custom or practice
d.       Defeating Liberty or Property Interests
i.         May NOT be defeated by denying procedural rights
ii.        Legislature may elect not to confer a property interest in employment but once conferred, due process applies
e.       Reputation
i.         Interest in reputation protected by state tort law, state impairment NOT a deprivation of liberty or property
4.       Deprivation
a.        Deprivation must be more than de minimis or insubstantial
i.         Goss v. Lopez (1975) (10-day suspension from public school requires pre-deprivation hearing):
–        10-day suspension is not de minimis; suspension is a “serious event” for student;
–        Length of deprivation is a factor in determining what type of hearing is required, but is not decisive on the issue of whether any hearing is required
5.       What Process is Due
a.        Notice
i.         Under Mullane v. Central Hanover Bank & Trust Co. (1950), notice must:
–        Be reasonably calculated to apprise interested parties of pending action;
–        Reasonably convey pertinent information;
–        Afford a reasonable time to appear.
ii.        May be tailored to the “practicalities and peculiarities of the case…”
b.       Timing and Scope of Hearing
i.         Most commonly used test is Mathews v. Eldridge (1976) 3-part balancing test:
–        What is the private interest at stake?
–        What is the risk of an erroneous deprivation given existing procedures, and how much will additional procedural safeguards minimize the risk of error?
–        What is the gov’t’s interest, and what fiscal and administrative burdens would be entailed by additional procedures?
c.        Hearing
i.         Mathewsis deferential:
–        Despite balancing of interests, Mathews requires that “substantial weight” be given to “good faith judgments” of legislators or administrators “that the procedures they have provided assure fair consideration of the…claims of individuals.”
ii.        Mathews is used to answer two questions:
–        First, when must some hearing be afforded?
–        Second, what kind of hearing must be afforded?
d.       Time of Hearing
i.         As a general rule, due process requires a pre-deprivation hearing of some kind
–        Determination is on a case-by-case basis using Mathews test
ii.        Exceptions to general rule:
–        Emergency: pre-deprivation hearing may be avoided when public interest requires immediate action (seizure of mislabeled drug)
–        Others: using Mathews, courts weigh risk of erroneous deprivation against burdens of additional procedures
e.       What kind of pre-deprivation hearing
i.         Generally, “something less than an evidentiary hearing is sufficient prior to adverse administrative action.”
ii.        As a general rule, no pre-deprivation evidentiary hearing is required if:
–        Adequate notice is given, and opportunity to respond pre-deprivation, either in person or in writing
iii.      Courts also consider post-deprivation remedies – ie. Reinstatement or repayment of benefits
iv.      But, severity of impact may require pre-deprivation hearing – Goldberg (loss of welfare benefits)
B.       Distinction Between Substantive and Procedural Due Process (Always distinguish)
1.       Procedural Due Process ONLY applies where “Individual Determinations” are being made
2.       Due Process Clause also limits the Substantive Power of the states to regulate certain areas of human life
a.        This “substantive” component derives mainly from the interpretation of the term “liberty” à Certain types of state limits on human conduct have been held to so unreasonably interfere with important human rights that they amount to an unreasonable (and unconstitutional) denial of “liberty”
i.         Exam Tip: Any time your fact pattern suggests that a state or federal gov’t is taking away some thing or value that could be considered “life, liberty, or property”, then entirely apart from the issue of whether the gov’t has proper procedures (Procedural Due Process…), you MUST ask whether the gov’t, by carrying out this taking violated the individual’s SUBSTANTIVE INTEREST in life, liberty, or property
3.       Involves the liberty interests of fundamental rights
C.       A Critical Distinction Within Substantive Due Process Analysis
1.       Non-Fundamental Rights (Burden on Attacker of statute)
a.        State Action that impairs this type of right ONLY has to meet the easy “mere rationality” test to justify it
i.         In other words, that the State is pursuing a legitimate gov’tal objective, and is doing so with a means that is rationally related to that objective
ii.        Again, if the right does NOT fall within a “fundamental right”, the state must merely act rationally in pursuit of some health, safety, or other “GENERAL WELFARE” goal
–        Economic and Social Welfare Regulation will almost always turn out to be NON-Fundamental
2.       Fundamental (Burden on State)
a.        Here, the Court Strictly Scrutinizes the regulation
b.       Analysis:
i.         Is the fundamental right being substantially impaired?
–        If no, rational basis test applies
ii.        Is there a compelling interest to justify the impairment; AND
–        If no, Due Process violation
iii.      Is the Means chosen by the state “Necessary” (Narrowly Tailored) to achieve that compelling end
–        There MUST NOT be any Less Restrictive Means that would do the job just as well à If there is, then Due Process Violation
A.      Generally
1.        The more important the constitutional interest involved, the more protection it will receive.
a.         -Fund. right vs. low-level, socio-economic interest
b.       Primary strategy in Con Law II is to raise the level of scrutiny by arguing a fundamental right or a suspect class is involved
c.        Fundamental rights may be textual (found in Constitution or Bill of Rights) or non-textual.
i.         Ways of Identifying Non-Textual Fundamental Rights (New Types of Fundamental Rights)
–         Tests:
°          Is the asserted right implicit in the concept of ordered liberty?
~         Things necessary to participate in the democratic process
°          Is the asserted right deeply rooted in our nation’s history or traditions?
~         Marriage, child raising, procreation
2.        State legislatures lose power when a new fundamental

–         “Specific and direct harm medically diagnosable”
–         “Psychological harm”
–         “Mental and physical health may be taxed by child care.”
d.       Roe’s Tri-mester Framework àROE’S BALANCING ACT
i.         State can regulate when its interests become sufficiently compelling:
–         Maternal health: at end of first trimester
–         Prenatal life: at viability (24-28 Weeks/3rd Tri-mester) à Problems?
°          Viability exists if fetus can live outside womb with or without artificial life support
°          After viability state may ban completely, but only with exceptions for maternal life and health
ii.        There’s a fundamental right to a first-trimester abortion (abortion = privacy)
–         By Trimester:
°          1st = Strict Scrutiny
°          2nd= Higher State interest, but still strict scrutiny
°          3rd = Rational Basis
~         State Interests à 10 Potentiality of Life & Woman’s Health
4.        Funding and Facilities
a.        State funding and facilities:
i.         Maher v. Roe (1977)
–         State policy of funding childbirth but not abortion imposes no restriction on access to abortion not already there;
°          The State treated it as a spending measure à Not abortion rights à Rational Basis Review
–         Since non-funding does not impair a fundamental right, test is rational basis
°          State has a “strong and legitimate interest” in encouraging childbirth and funding scheme is a rational means of meeting state interest
b.       Federal gov’t is not required to fund non-therapeutic abortions:
i.         Harris v. McRae (1980)
–         Freedom to choose abortion does not mean constitutional entitlement to funding for abortion
°          Medicare or Medicaid
ii.        Rust v. Sullivan (1991)
–         Federal regulations may prohibit federally funded clinics from providing counseling for non-therapeutic abortions;
–         No worse off than if Congress provided no funding for family planning services at all
c.        Webster v. Reproductive Health Svcs. (1989)
i.         States not obligated to allow public facilities or public employees to be used for non-therapeutic abortions;
ii.        Court did not reach the merits of claim regarding prohibition of abortion counseling by public employees at public facilities; issue was decided later in Rust v. Sullivan, supra.
5.        An Evolving Standard
a.        Akron v. Akron Center for Reproductive Health (Akron I) (1983) (O’Connor, J., dissenting)
i.         Undue burden standard should be applied throughout pregnancy, regardless of tri-mester:
–         If regulation creates undue burden, then state must articulate compelling interest and show that regulation is necessary or narrowly tailored;
–         If regulation does not create undue burden, then test is rational basis.
6.        Planned Parenthood v. Casey (1992)
a.        State Interest
i.         State interests
ii.        In the express profound respect for the fetus – minimizing abortion
iii.      State has interest In informed consent
iv.      24-hour waiting period = informed consent + minimizing abortion
b.       Holdings
i.         Spousal notification prior to obtaining an abortion was invalid under the 14 Amendment (State Due Process Clause) b/c it created an undue burden on married women seeking an abortion
ii.        Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations b/c not an undue burden
iii.       Since the critical issue is viability, the tri-mester framework was abandoned
iv.      Reaffirmed “essential holding” of Roe
–         First, right to have abortion pre-viability without “undue interference” from the state
°          State cannot prohibit pre-viability abortion
~         A form of intermediate scrutiny (pre-viability stage) à Woman’s interest is stronger
~         Rational basis (post-viability) à State’s interest are stronger
°          State cannot place “substantial obstacle” in way of right to choose pre-viability abortion
–         Second, state can ban abortions post-viability, if there is an exception for maternal life and health
–         Third, state has “legitimate interests” in protecting maternal health and fetal life throughout pregnancy
c.        Informed Consent and Waiting Periods
i.         Informed consent requirements
–         Regulations allowed if they inform the woman’s decision and encourage childbirth. Casey, overruling Akron I
°          Can require “truthful, non-misleading information” about:
~         Nature of the procedure
~         Risks of abortion and childbirth
~         Probable gestational age o the fetus
°          State may require that information be given by a doctor. Casey, overruling Akron I.
ii.        Waiting period