Constitutional Law Due Process Clause of Fourteenth Amendment

Review of Due Process

1. Constitutional Law TA SESSION 11/13/24

2. Due Process 5 th and 14 th Amendments – what is the difference? Where does Equal Protection come from? Procedural – when the government acts to deprive a person of life, liberty or property, it must do so in accord with procedures deemed to be fair Notice and opportunity to be heard Substantive – insists that the law itself must be fair and reasonable and have an adequate justification regardless of how fair or elaborate the procedures might be for implementation. Independent of other textual guarantees of the Constitution Protects life, liberty, and property even if no other textual right is infringed

3. State law provides that anyone suffering from AIDS shall be incarcerated in a special state facility until he or she is cured of the disease. The law provides that no one shall be incarcerated without a judicial hearing to determine that the person is suffering from AIDS. Does this law violate due process?

4. State law provides that anyone suffering from AIDS shall be incarcerated in a special state facility until he or she is cured of the disease. The law provides that no one shall be incarcerated without a judicial hearing to determine that the person is suffering from AIDS. Does this law violate due process? Procedural – probably not since there seems to be notice and opportunity for a hearing Substantive – probably yes, because no matter how fair the procedures, the substance is so unfair and unreasonable that it violates due process. While the state’s goal of protecting the public from AIDS is an important one, there are less drastic ways to achieve this goal that do not involve severe interference with personal liberty

5. Judiciary consistently enforced slavery Dred Scott v. Sanford - Held portions of the Missouri Compromise unconstitutional as violating the 5th Amendment (depriving of property without due process) treated Scott as property, not as a person. No diversity of citizenship (slaves are not citizens) = no jurisdiction Scott based jurisdiction on diversity of citizenship by being in Illinois, a free state; Court says that crossing the state line did not make him free

6. Equal Protection Clause It is not unlawful to discriminate. All laws discriminate on some level. The issue is whether a certain type of discrimination is unlawful based on: The type of classification The government’s purpose Courts consider whether immutable characteristics (e.g. protected classes), representation in the political process as protection, and history of discrimination 14 th Amendment Equal Protection Clause  requires states to practice equal protection . States must govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. No provision in the Constitution that says the federal government cannot deny equal protection

7. Incorporation doctrine Bolling v. Sharpe - equal protection applies to federal government through the Due Process Clause of 5 th Amendment (implicit equal protection requirement) Sort of a mistake when working on extending Brown v. Board to schools in DC which are under federal jurisdiction - They realized this late and made this change. Fundamental individual liberties, like most of the Bill of Rights have been incorporated to apply to the states by the Supreme Court through the Due Process Clause in the 14 th Amendment. Slowly over the last hundred years or so, these have been applied to the states (selective incorporation) Basically all of the Bill of Rights applies with a few exceptions like the third amendment and like parts of other amendments (grand jury indictment, few assorted ones).

8. Framework for Equal Protection Analysis What is the classification? Facially discriminatory? Facially neutral? What is the appropriate level of scrutiny? Does the government action meet the level of scrutiny?

9. What is the Classification? Facially discriminatory – on the ”face” of the law Example: Law draws a distinction among people based on race or national origin. If Law is facially neutral, racial classification can be proven by showing (1) discriminatory purpose, AND (2) discriminatory impact Before 13 th and 14 th amendments – slavery was legal and no equal protection or limit on discrimination Art. I §2 – apportionment of house of reps with 3/5ths clause Art I §9 – prevented Congress from banning importation of slaves until 1808 Article V – Can’t alter slavery with constitutional amendment until 1808 Art. IV §2 – Fugitive Slave Clause

10. What is the appropriate level of Scrutiny? Strict Scrutiny – Applied to fundamental rights and discrimination based on suspect classes (Race, ethnicity, national origin, etc.) Compelling government interest Law is “narrowly tailored” to accomplish that interest Burden on government to prove Intermediate Scrutiny – Applied to gender discrimination (biological differences more likely to justify some instances of discrimination) Important government interest Law “substantially related” to that interest Burden on government to prove Rational Basis Review – Everything else. Most deferential to government. Legitimate government interest Law is “rationally related” to that interest Burden on challenger to prove We’ve seen this in Trump v. Hawaii

11. Is the law narrowly tailored to further the government interest? For strict scrutiny – will need to show that the law is the least restrictive alternative to achieve the goal What is the degree of overinclusiveness / underinclusiveness ? Underinclusive – excludes individuals to which the law should apply (e.g. some under-16 year olds could drive) Overinclusive – applies to individuals that need not be included to achieve government purpose (e.g. evacuating all Japanese Americans during WWII) Does the government action meet the level of scrutiny?

12. Overinclusive/Underinclusive Underinclusive –An underinclusive classification excludes some similarly situated persons from the intended legislative benefit or detriment. E.g. Legislation that was written to eliminate fraud in government but only includes Executive Branch employees is underinclusive. Overinclusive – An overinclusive classification contains all persons who are similarly situated and also persons who should not be included. e.g. Legislation that is intended to protect poor and fragile elderly people but extends to all senior citizens is overinclusive.

13. A state law requires that hospital emergency room personnel have been born in the United States. It was challenged by Carlos, a naturalized US citizen who was born in Mexico. He challenged the law because he was denied a job in a local emergency room. The state has defended the law on the ground that it is necessary to ensure health and safety of the patients by ensuring that emergency room personnel can communicate with patients and staff in English. Will this law survive an Equal Protection challenge?

14. Answer: law violates Equal Protection What is the relevant classification? facially discriminatory – national origin What is the appropriate level of scrutiny based on that classification? Strict Scrutiny 3) Does the Government action meet the level of scrutiny – is the Test satisfied? Compelling government interest? Health and safety of citizens are probably compelling interest Is the law narrowly tailored to further the government interest? Poorly tailored, less discriminatory alternatives are available – strongly suggests intent was not for health and safety What is the degree of overinclusiveness / underinclusiveness ? Overinclusive – applies to all persons of foreign origin eeven if they speak English perfectly Underinclusive – allows US citizens to work in ER even if English is poor

15. A state law requires female workers to pay higher annual premiums to the state retirement on the theory that, because they live longer, they will draw benefits for a longer period of time. The state has argued that they are justified in charging different premiums on the basis that the state needs to maintain the fiscal integrity of the pension plan. Will this law survive an Equal Protection challenge?

16. Answer: law violates Equal Protection What is the relevant classification? facially discriminatory – gender What is the appropriate level of scrutiny based on that classification? Intermediate scrutiny 3) Does the Government action meet the level of scrutiny – is the Test satisfied? Important government interest? Preserving pension stability is important interest Law “substantially related” to that interest? Probably not, because the state could achieve the objective without engaging in gender discrimination. State may not employ presumption that all members of a gender share a characteristic that may have a statistical validity for the group as a whole but is not true of individual members of the group. The state is using a gender stereotype in lieu of other more accurate factors. Burden on government to prove

17. Civil War Amendments – 13 th , 14 th , 15th 13 th – struck down slavery, 14 th – all persons born or naturalized are US citizens, due process, 15 th – voting rights The Civil Rights Cases (1883): The Civil Rights Act of 1875 affirmed the equality of all persons in the enjoyment of transportation facilities, in hotels and inns, and in theaters and places of public amusement. Though privately owned, these businesses were like public utilities, exercising public functions for the benefit of the public and, thus, subject to public regulation. In five separate cases, a black person was denied the same accommodations as a white person in violation of the 1875 Act. Court struck down the Civil Rights Act of 1875 as unconstitutional It barred discrimination/segregation in private venues Held that 13 th and 14 th Amendments only apply to government actions, not private conduct 13 th Amendment applies to private actors only insomuch as it prohibits slavery. Cannot be used to eliminate discrimination. U.S. v. Morrison (2000) – Reaffirmed that Congress cannot regulate private behavior under § 5 of the 14 th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”)

18. State Action Doctrine Since The Civil Rights Cases (1883), the 14 th Amendment has been interpreted by the Court to only limit State and Local governments, not private individuals or corporations. Recall, that is why Congress used its Commerce Clause power, and not 14 th Amendment, to enact Civil Rights Act of 1964, which was upheld in Heart of Atlanta Motel and McClung . For power under the thirteenth amendment to regulate the “badges and incidences of slavery,” the Civil Rights cases interpreted this narrowly, some cases since then have given this some authority. Exceptions where Constitution applies to private actors: (1) Public Functions Exception for private entities performing functions normally performed by government and (2) Entanglement Exception – if government is authorizing, encouraging or promoting unconstitutional behavior

19. Background to City of Boerne Employment Div., Dept. of Human Resources of Oregon v. Smith (199) Plaintiffs were Native Americans who religiously used peyote. Challenged law that prohibited unemployment benefits for persons fired because for drug use. Court rejected argument that strict scrutiny should apply, because law was neutral and generally applicable. Instead applied Rational Basis Review. In response, Congress passed Religious Freedom Restoration Act of 1993 (RFRA), using its §5 power to require courts to apply strict scrutiny to religious discrimination claims like in Smith .

20. City of Boerne v. Flores (1997) Archbishop of San Antonio sued under RFRA, alleging that city’s denial of a building permit to expand a church was religious discrimination. Court struck down the RFRA, holding that Congress’ power under § 5 is remedial (not preventative). Congress cannot expand the scope of a substantive right (not enforcing if it is expanding the right) Effectively made court the sole expositor of Constitutional rights Congress must support its exercise of §5 power by pointing to a pattern of discriminatory laws requiring action Congress’ response to discrimination must be congruent and proportional .

21. Shelby Co., AL v. Holder (2013) Shelby County challenged two provisions of VRA 1) provision which required pre-clearance before changing voting laws 2) coverage formula which determined which jurisdictions are subject to preclearance Court struck down the coverage formula because it was based on data that was 40 years old. While the court did not strike down the pre-clearance requirement, effectively no jurisdiction was covered by provision until Congress passed new coverage formula 10 th Amendment establishes a principle of state sovereignty and states are entitled to principle of equal sovereignty

22. Con Law in the News! Merrill v. Milligan – On Oct 4 , SCOTUS heard arguments The law at the center of the case is §2 of the Voting Rights Act, which bars election practices that result in a denial or abridgement of the right to vote based on race. Voters and other groups have challenged Alabama’s 2021 redistricting map for its seven seats in the U.S. House of Representatives, arguing that the map violated Section 2 by diluting the votes of the state’s Black residents, who make up 27% of the state’s population. Challengers allege that the state illegally packed many Black voters into one district in a part of Alabama known as the “Black Belt.” At the same time the state allegedly dispersed Black voters in the rest of the Black Belt into several other districts where they are only a minority, when it should have created an additional majority-Black district.

23. Where are we so far? Issue Spotting 1. Is it justiciable? Ripeness, Mootness (don’t forget exceptions!), Standing (injury in fact, causation and redressability), Political Question, Ban on Advisory Opinions 2. Is it an issue of Executive power? Is it authorized in the Constitution? Is it authorized in a statute? If not authorized by either Constitution or statute, is there inherent power? Other considerations: nondelegation doctrine, appointment/removal power, war and emergency powers, executive privilege, etc.

24. 3. Is there a Federal Statute involved (exercise of Congressional power)? A. Does it regulate private actors? Is it within Congress’s article I powers to have enacted the statute? Commerce clause under Lopez/Sebelius Taxing and Spending power under Butler , Sabri and Dole/Sebelius Necessary & Proper Clause under McCulloch/Comstock/Sebelius . B. Does it regulate State power? Is Congress exercising power of enforcement under §5 of 14 th Amendment? If so, does the statute comply with the City of Boerne test (congruent and proportional)? Is the law unduly coercive on the States? (Dole/Sebelius) C. Does it create a Tenth Amendment problem under NY v. US or Printz ? Where are we so far? Issue Spotting

25. 4. Is there a State Statute involved (exercise of Congressional Power)? Stay tuned for DCC, preemption, etc … 5. Does it violate equal protection under the applicable test? What is the classification? Is it facially discriminatory? Is it facially neutral? Must prove (1) discriminatory purpose/intent and (2) discriminatory effect/impact Which level of scrutiny (strict, intermediate, or RBR)? Does the government action meet the level of scrutiny? Where are we so far? Issue Spotting

26. Equal Protection Issue Spotting What is the relevant classification? Is it facially discriminatory or facially neutral? If facially neutral, is there discriminatory purpose AND discriminatory impact? What is the appropriate level of scrutiny based on that classification? Strict scrutiny (government has burden, usually fatal) Compelling gov’t interest and narrow tailoring (necessary, not over or under inclusive) Applied to suspect classifications: race, religion, ethnicity, national origin, etc. “immutable characteristics” Intermediate scrutiny (government has burden) Important gov’t interest and substantially relationship Applied to quasi-suspect class: gender/sex and legitimacy Rational Basis review (government does not have burden; very few laws invalidated) Legitimate gov’t interest and rational relationship Everything else, including age, sexual orientation, and disability

27. 3. Does the Government action meet the level of scrutiny – is the Test satisfied? Is the law narrowly tailored to further the government interest? For strict scrutiny – will need to show that the law is the least restrictive alternative to achieve the goal What is the degree of overinclusiveness / underinclusiveness ? Underinclusive – excludes individuals to which the law should apply (e.g. some under-16 year olds could drive) Overinclusive – applies to individuals that need not be included to achieve government purpose (e.g. evacuating all Japanese Americans during WWII) Equal Protection Issue Spotting