2013 Michigan Bar Exam Constitutional Law Charts

PROCEDURAL DUE PROCESS ANALYSIS

as applied to the federal government through the 5
th
amendment
and the states through the 14
th
amendment



IS THERE A STATE ACTOR?



IS THERE INTENTIONAL DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?











WAS THERE NOTICE AND A HEARING WITH AN IMPARTIAL DECISIONMAKER?










WAS THE SCOPE OF THE EVIDENTIARY HEARING ADEQUATE?


NO
Private actors are
generally exempt from
PDP requirements
YES
No violation
of procedural
due process
NO
Do the facts involve either
An at will public employee
or
Harm to reputation?
NO
YES
There is no property interest in
unilateral expectation of
employment
Harm to reputation, standing
alone, does not implicate
deprivation of liberty or
property triggering Due process
NOTICE
Did it tell what rules are and what was allegedly violated?
HEARING
Opportunity to rebut governments case?
IMPARTIAL DECIONMAKER
Did IDM have no interest in the outcome?
YES
Per Se violation
of procedural
due process
NO
BALANCING TEST (Subjective)
Importance of interest deprived
Risk of erroneous deprivation of the interest
Burden or cost associated with using a new procedure
YES
2013 Michigan Bar Exam Constitutional Law Charts
SUBSTANTIVE DUE PROCESS ANALYSIS

Applies to unenumerated rights in the 9
th

as applied to the federal government through the 5
th
amendment
and the states through the 14
th
amendment

APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF ALL PERSONS
WITH RESPECT TO A SPECIFIC ACTIVITY:






































Fundamental Right? Not Fundamental?
NO
marry, divorce, and
maintain children
Family Relations
Contraceptives
Right to Die
Refuse medical care
Private consensual
sexual activity
Obscene material in
privacy of home (not
child porn)
Abortion
Economic regulation
Or any other non-
fundamental right
APPLY STRICT SCRUTINY

Government has burden
Compelling government
interest?
o Morals cannot stand alone
Narrowly tailored and least
restrictive means? (best way
and no reasonable alternative)
APPLY PP v. CASE TEST

Pre-viability?
State can regulate
But no undue burden
(substantial obstacle) on
mother to get abortion
-24 Hr waiting period,
requirement by license Doctor

Post-Viability
State can ban
o Health and Safety Exception

-Never need spousal consent.
-Minors need judicial bypass
option.
-No government duty to
subsidize abortions.
APPLY RATIONAL BASIS

Challenger has burden
Legitimate state interest (To
protect health, safety, and
morals of adults and
children)
o Morals cannot stand
alone
Means are rationally related
(but not necessarily the best
way)
YES
YES
YES
LAW IS VALID
YES
LAW IS INVALID
NO YES
2013 Michigan Bar Exam Constitutional Law Charts
EQUAL PROTECTION ANALYSIS

as applied to the federal government through the 5
th
amendment
and the states through the 14
th
amendment

APPLY WHERE THERE IS A LAW (STATE ACTION) THAT AFFECTS THE RIGHTS OF SOME
PERSONS WITH RESPECT TO A SPECIFIC ACTIVITY:





















SUSPECT
(Discreet, Insular minorities)

Race
Ethnicity/National Origin
Alienage Except Rational
Basis Test for
o Government function of
state that has direct impact
on public policy
(employment, licensure)
o Congressional action on
Feds (plenary power)

Affirmative Action
Based on race (gender is
intermediary scrutiny)
o Employment
Remedying past or
present discrimination in
a particular institution
o Higher Education
Individual review to
achieve diverse student
body
QUASI-SUSPECT

Gender
Illegitimacy
Undocumented alien children
NON-SUSPECT

All others
Age
Sexual orientation
Mental Disability
Undocumented Adult aliens
Poverty
Anything not in another
classification
STRICT SCRUTINY
INTERMEDIATE
RATIONAL BASIS
Government has burden
Compelling government
interest?
o Morals cannot
stand alone
Narrowly tailored and
least restrictive means?
(best way and no
reasonable alternative)
Government has burden
Exceedingly persuasive
interest for gender? OR
Important interest for
illegitimacy? OR
Substantial interest for
undocumented alien
children
AND
Government interest
substantially related to
achieving means?
Challenger must prove NO:
Legitimate state interest?
o Government loses if
purpose is animus (desire
to harm a politically
unpopular group), thus
interest is not legitimate)
Means are rationally
related (but not
necessarily the best way)
o Government loses if
means are arbitrary or
irrational