United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2006
Charles R. Fulbruge III
Clerk
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No. 03-30752
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KAREN LECLERC; GUILLAUME JARRY;
BEATRICE BOULORD; MAUREEN D. AFFLECK,
Plaintiffs - Appellants - Cross Appellees,
versus
DANIEL E. WEBB, ET AL.,
Defendants,
DANIEL E. WEBB; HARRY J. PHILLIPS, In Their Respective
Official Capacities as Chairman and Vice-Chairman of the
Louisiana Committee on Bar Admissions;
JEFFERY P. VICTORY; JEANNETTE THERIOT KNOLL;
CHET D. TRAYLOR; CATHERINE D. KIMBALL, a/k/a Kitty Kimball;
JOHN L. WEIMER; BERNETTE JOSHUA JOHNSON, In Their
Official Capacities as Justices of the Louisiana
Supreme Court,
Defendants - Appellees - Cross Appellants.
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No. 03-31009
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CAROLINE WALLACE; EMILY MAW,
Plaintiffs - Appellees,
versus
PASCAL F. CALOGERO JR., in his official capacity as
Chief Justice of the Louisiana Supreme Court;
JEFFREY P. VICTORY; JEANNETTE THERIOT KNOLL;
CHET D. TRAYLOR; CATHERINE D. KIMBALL; JOHN L. WEIMER;
BERNETTE J. JOHNSON, in their official capacities as
Justices of the Louisiana Supreme Court;
DANIEL E. WEBB; HARRY J. PHILLIPS, JR., in their
respective official capacities as Chairman and
Vice-Chairman of the Louisiana Committee on Bar Admissions,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana,
ON PETITION FOR REHEARING EN BANC
(Opinion 8/18/05, 5th Cir. 419 F.3d 405)
Before JONES, Chief Judge, and SMITH, and STEWART, Circuit
Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
The court having been polled at the request of one of the members
of the court and a majority of the judges who are in regular active
service and who are not disqualified not having voted in favor
(FED.R. APP. P. and 5TH CIR. R. 35), the petition for rehearing en banc
is DENIED.
2
Patrick E. Higginbotham, Circuit Judge, joined by KING, DAVIS,
WIENER, BENAVIDES, STEWART, and DENNIS, Circuit Judges, dissenting
from the denial of rehearing en banc.
I respectfully dissent from the Court’s refusal to consider en
banc the important issues in this case. The panel majority rejects
strict scrutiny on the basis that these “nonimmigrant aliens,”
whatever that means, are not as “discrete and insular” as the
“permanent resident aliens” afforded suspect classification by the
Supreme Court. It reaches that result by judicially crafting a
subset of aliens, scaled by how it perceives the aliens’ proximity
to citizenship. This is a bold step not sanctioned by Supreme
Court precedent.
For decades, many have argued that it is the classification of
aliens as an insular minority that is suspect. The criticism comes
in two forms. To some, the unique federal interest in regulating
aliens offers a superior rationale for strict scrutiny than the
aliens’ insular status. As the Supreme Court has recognized, “the
responsibility for regulating the relationship between the United
States and our alien visitors has been committed to the political
branches of the Federal government.”1
1
Mathews v. Diaz, 426 U.S. 67, 81 (1976); Toll v. Moreno, 458 U.S. 1,
10 (1982) (holding that the Supreme Court has “long recognized the preeminent
role of the Federal Government with respect to the regulation of aliens within
our borders” and collecting cases to that effect).
3
To others, the insular status of aliens exists only as a
consequence of valid federal law, making strict scrutiny of
alienage classifications never appropriate. This contention
strikes twice. First, it contends that the alien’s limited
political role cannot support their treatment as an insular
minority. This, because the very admission of the alien is by
legislation that defines his role in the political community,
subject only to constitutional constraints upon the exercise of
that federal power. Second and relatedly, given the supreme
federal regulatory power over matters of immigration, the status of
persons admitted in conformity with federal law is by definition
not immutable. To the point, this criticism is leveled at the
claimed insular minority status of all aliens lawfully in the
country. It draws no distinction between a particular alien’s
connection to citizenship or subsets of lawfully admitted persons.
Rather, it rejects strict scrutiny without regard to the aliens’
proximity to citizenship, the relevant factor for discrete and
insular minority status under Carolene Products.
Resting strict scrutiny on the insular minority status of
legally admitted aliens has its weaknesses. But none support the
panel opinion and, in any event, each has been rejected by the
Supreme Court. As for the trumping constitutional power of the
federal government in controlling the nation’s borders, including
matters of immigration and naturalization, an allocation that the
4
Supreme Court has pointed to as itself demanding strict scrutiny of
state regulations of persons whose presence in the country is
lawful under federal law, the panel majority is silent––a silence
made the more puzzling by its rationale that this “category” of
alien has such a limited tenure in the United States under the
conditions of federal law admitting them that their state
regulation should not be subjected to strict scrutiny. This is
exactly backwards. As the federal constraints are increased, the
regulatory field for states is decreased.2 As the federal
judiciary draws distinctions between different classes of aliens,
applying strict scrutiny to some and rational-basis review to
others, it shifts responsibility over aliens from the Congress to
the States. This is perverse. The panel majority relaxes scrutiny
of state regulation of aliens as the federal regulation of them is
increased. This is too ambitious for me.
2
Mathews, 426 U.S. at 81; see also Graham v. Richardson, 403 U.S. 365,
378 (1971) (“[States] . . . can neither add to nor take from the conditions
lawfully imposed by Congress upon admission, naturalization and residence of
aliens in the United States . . . . State laws which impose discriminatory
burdens upon the entrance or residence of aliens lawfully within the United
States conflict with this constitutionally derived federal power to regulate
immigration, and have accordingly been held invalid.” (quoting Takahashi v. Fish
& Game Comm’n, 334 U.S. 410, 417 (1948))).
5
CARL E. STEWART, Circuit Judge, with whom KING, HIGGINBOTHAM,
WIENER, and DENNIS, Circuit Judges, join dissenting from the denial
of rehearing en banc.
I dissent from the court’s denial of rehearing en banc in this
case involving the rights of alien law school graduates to be
admitted to practice law in the State of Louisiana. For the reasons
more fully detailed in my dissenting opinion from the panel
majority’s holding,1 I reject the panel majority’s creation of a
new classification of “nonimmigrant aliens,” a distinction the
Supreme Court has never drawn when discussing the alien suspect
class, and its application of rational basis review to laws
targeting this class. The matter at issue is clearly enbancworthy
because of the far reaching consequences of the panel’s holding. I
continue to maintain that the plaintiffs in this case, who are
lawfully admitted aliens residing in the United States, are part of
the alien suspect class and that, therefore, laws that discriminate
against them are inherently suspect and should be subjected to
strict scrutiny. Accordingly, I dissent from the full court’s
failure to vacate the panel opinion and hear the case anew.
Moreover, I fully concur in the persuasive opinion dissenting from
1
LeClerc v. Webb, 419 F.3d 405, 426-31 (Stewart, J., concurring in
part and dissenting in part).
6
the denial of rehearing en banc penned by Judge Higginbotham.
7