Retroactive Legislation and Intro to SDP/EPC

Contract Clause: Impairment of Contract

The Contract Clause states that no state shall impair the obligation of contracts. Thus, it limits the ability of states or local government to enact laws that retroactively impair contract rights, but it has no applicability to laws that affect contracts made in the future

Contact Clause Federal Applicability

There is no comparable Contract Clause limitation on the federal government, but flagrant contract impairment would violate the DPC if it does not satisfy rational basis review

Impairment of Private Contracts: Intermediate Scrutiny

State or local interference with private contracts must meet a slightly different intermediate scrutiny test: state or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly-tailored means or promoting an important and legitimate public interest

Impairment of Public Contracts: Strict Scrutiny

State or local interference with government contracts must satisfy strict scrutiny, especially if the legislation reduces the contractual burdens on the state

Ex Post Facto Laws

An Ex Post Facto law criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.

Ex Post Facto Retroactivity

A statute will be held to retroactively alter a law if it: (1) makes criminal an act that was innocent when done; (2) prescribes greater punishment for an act than was prescribed for the act when it was done; or (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed

Ex Post Facto and the Courts

The DPC of the 5th and 14th Amendments prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way

Bills of Attainder

A bill of attainder is a legislative act that inflicts punishment on specific individuals without a judicial trial. They are strictly prohibited.

Misc Due Process Considerations

If a retroactive law does not violate the Contract, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the DPC. If the retroactive law doesn’t relate to a fundamental right, it need only be rationally related to a legitimate government interest

Substantive Due Process

The focus is on whether the government has adequate reason for taking away a person’s life, liberty or property

Equal Protection

The focus is on whether the government’s differences in the treatment of people are adequately justified

Equal Protection: Class of One

At least in regard to property regulation, SCOTUS has recognized that an equal protection claim may be brought for arbitrary treatment of a single individual. However, an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim

Source of SDP

The Fifth Amendment for the federal government and the 14th for state and local governments

SDP Standards

When a fundamental right is limited, the law or action is evaluated under strict scrutiny. In all other cases, including when economic liberties are involved, the rational basis standard applies

SDP Fundamental rights

Fundamental rights can be enumerated in the Constitution. If unenumerated, a right is fundamental if it is: (1) deeply rooted in the nation’s history and tradition; and (2) essential to the concept of ordered liberty