conanalysis flow chart

conanalysis flow chart - FIRST QUESTION = STATE OR FEDERAL...

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FIRST QUESTION = STATE OR FEDERAL ACTION ? IF STATE GOVERNMENT IS THE ACTOR : (including municipalities) Don’t have to show authority if it’s the state acting Does law violate a provision of the Constitution ? 14 th Amendment - Need to show state action before 14 th applies!!!! Equal Protection Clause (1) Suspect Classification Racial Discrimination (see attached) Gender Discrimination (see attached) Others = just rational basis test (but rational basis with bite?) physically or mentally disabled homosexuals wealth (2) Fundamental Right – voting, travel, SDP, (not education, not welfare) o Substantive Due Process (1) Does the state action prohibit/interfere with an individual liberty interest? IF NO: move on. IF YES: go to (2) (2) Is there a fundamental right deprivation? Consider how you frame the issue ( Romer, Michael H.) Consider Harlan’s concurrance in Griswold (the dissent in Poe v. Ullman): Fundamental rights are “implicit in the concept of ordered liberty” Balances liberty of the individual v. needs of the society. Looks at history, but focuses on the living tradition. Consider Scalia’s test in Michael H, VMI. : Is the right on that is historically protected by law. Looks at the legal tradition narrowly. This is a minority view of the court. NO Rational Basis applies = a legitimate state interest, reasonably related. YES Strict Scrutiny applies = Narrowly tailored to a compelling state interest. (Narrowly tailored: Are the implemented means necessary? Can the ends be achieved in a less burdensome way?) *** Also consider Casey’s undue burden test. We don’t know yet if that test applies to abortion only, or to privacy rights in general. Is the obstacle to the fundamental right significant? o Procedural Due Process (1) Do you have an interest which triggers PDP? (life, liberty, property) Liberty includes Bill of Rights, SDP rights, equal protection 1
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Property = a statutory right/entitlement created by positive law ( Roth ) if the laws which grant the right are repealed, then the right disappears also (ex: welfare benefits) (2) Once you have a triggering interest , what process is due? Apply Matthews balancing test: V. Risk of erroneous deprivation of such interest must also be considered – high risk weighs in favor of the individual Pre-emption – ( Gade Test) Look for 1 of 3 types: (1) Express = fed statute says “no state shall pass a law covering…” (2) Implied (field) = fed legislation is so pervasive that it occupies the entire field of law; no place left for state to act (3) Implied (conflict) = compliance with fed and state statutes is impossible ( Gade falls here) In all cases federal law trumps! Dormant Commerce Clause
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conanalysis flow chart - FIRST QUESTION = STATE OR FEDERAL...

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