RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0341p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

LEAGUE OF UNITED LATIN AMERICAN CITIZENS

(LULAC), on behalf of its members; YOLANDA

LEWIS, individually, as next friend of Sergio

Chavez, and on behalf of all others similarly

situated; and ALEX M. SIGUENZA, individually and

on behalf of all others similarly situated,

Plaintiffs - Appellants,

GERALDINE M. GURDIAN, individually and on behalf

of all others similarly situated,

Plaintiff,

v.

PHIL BREDESEN, Governor of the State of

Tennessee; and FRED PHILLIPS, Commissioner of the

Tennessee Department of Safety,

Defendants - Appellees,

NANCY MURRAY and MICHAEL ALLEN,

Defendants.

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No. 06-5306

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 04-00613—Todd J. Campbell, Chief District Judge.

Argued: March 13, 2007

Decided and Filed: August 28, 2007 

Before: NORRIS, GILMAN, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Jerry Gonzalez, Murfreesboro, Tennessee, for Appellants. Lynne T. Edgerton, OFFICE

OF THE ATTORNEY GENERAL, STATE OF TENNESSEE, Nashville, Tennessee, for Appellees.

ON BRIEF: Jerry Gonzalez, Murfreesboro, Tennessee, for Appellants. Lynne T. Edgerton,

Lizabeth A. Hale, Michael A. Meyer, OFFICE OF THE ATTORNEY GENERAL, STATE OF

TENNESSEE, Nashville, Tennessee, for Appellees.

1
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McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined. GILMAN,

J. (pp. 13-18), delivered a separate dissenting opinion.

_________________

OPINION _________________

McKEAGUE, Circuit Judge. This is an appeal from a judgment dismissing claims

challenging Tennessee’s driver license law as violative of certain aliens’ right to equal protection

and right to travel. On due consideration of plaintiffs’ complaint in light of the parties’ appellate

arguments, we affirm the district court’s judgment that the complaint fails to state a claim upon

which relief can be granted. 

I. BACKGROUND

For purposes of this appeal, plaintiffs in the action below include: the League of United

Latin American Citizens (“LULAC”), a not-for-profit organization dedicated to the advancement

of the interests of the Hispanic population in the United States; Yolanda Lewis, a citizen of Mexico

and resident of Tennessee, proceeding on her own behalf and on behalf of her minor son, Sergio

Chavez; and Alex M. Siguenza, a citizen of Nicaragua and resident of Tennessee. Defendants, sued

in their official capacities, are Phil Bredesen, Governor of Tennessee; and Fred Phillips,

Commissioner of the Tennessee Department of Safety. 

In June 2004, plaintiff Alex Siguenza attempted to renew his Tennessee driver license in

Nashville. When he admitted that he was neither a United States citizen nor a lawful permanent

resident, he was advised that he could not be issued a new driver license, but only a certificate for

driving. On July 9, 2004, plaintiff Yolanda Lewis attempted to obtain a Tennessee identification

card for her 8-year old son, Sergio Chavez, in Nashville. When she disclosed that Sergio was

neither a United States citizen nor a lawful permanent resident, she was told that he was not entitled

to any state-issued identification document. As a non-lawful permanent resident, plaintiff Lewis,

too, is not eligible for a driver license under Tennessee law. 

Plaintiffs commenced this putative class action in the Middle District of Tennessee on July

12, 2004. Plaintiff LULAC proceeds on behalf of its members (over 115,000 throughout the United

States); Lewis proceeds on behalf of herself and her minor son and all others similarly situated; and

Siguenza proceeds on behalf of himself and all others similarly situated. The first amended

complaint contains nine counts. Only two are relevant to this appeal. Both challenge provisions of

2004 Public Acts Chapter 778, amending Tennessee’s driver license law, which became effective

July 1, 2004. In count I, plaintiffs proceed under 42 U.S.C. § 1983 and allege that Tenn. Code Ann.

§ 55-50-321(c)(1)(C), conditioning issuance of a driver license upon proof of United States

citizenship or lawful permanent resident status, is a classification based on alienage that denies them

equal protection of the law. In count VI, plaintiffs seek a declaratory judgment to the effect that

Tenn. Code Ann. § 55-50-321(c)(1)(C), by denying a driver license to some aliens, impermissibly

burdens aliens’ fundamental right to travel. That lawful temporary resident aliens may obtain a

“certificate for driving” instead, pursuant to Tenn. Code Ann. § 55-50-331(g), is said not to be an

adequate substitute, because the certificate for driving, unlike a driver license, is explicitly “not valid

for identification.” Tenn. Code Ann. § 55-50-102(6). Plaintiffs moved for a preliminary injunction

to enjoin implementation of Chapter 778 and enjoin issuance of certificates for driving to aliens in

lieu of driver licenses. Plaintiffs also asked the court to require defendants to convert all certificates

for driving already issued during 2004 into driver licenses. 
No. 06-5306 League of United Latin Am. Citizens,

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1

“A voluntary membership organization has standing to sue on behalf of its members ‘when (a) its members

otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the relief requested requires participation of individual members in the

lawsuit.’” ACLU of Ohio, 375 F.3d at 489 (quoting Hunt v. Washington State Apple Adver. Comm., 432 U.S. 333, 343

(1977)).

In an opinion and order dated September 28, 2004, the district court denied plaintiffs’ motion

for preliminary injunction. League of United Latin American Citizens v. Bredesen, No. 3:04-0613,

2004 WL 3048724 (M.D. Tenn. Sept. 28, 2004). This ruling has not been appealed. On November

23, 2004, the court granted the state defendants’ motion to dismiss, thereby dismissing the claims

contained in counts I and VI, which are the subject of this appeal. Incorporating by reference the

reasoning set forth in its opinion denying preliminary injunction, the district court held that neither

the equal protection claim nor the right to travel claim stated a claim upon which relief can be

granted. The court concluded that issuance of a certificate for driving instead of a driver license

does not infringe aliens’ right to travel. Id. at *4-5. The court also concluded that the classification,

treating illegal aliens and lawful temporary resident aliens differently than lawful permanent resident

aliens, does not discriminate against a suspect class and does not burden a fundamental right. The

court therefore held that the classification is subject to “rational basis” scrutiny. Applying rational

basis scrutiny, the court went on to hold that the classification is rationally related to legitimate

governmental purposes and is therefore not violative of equal protection. Id. at *5-6. The district

court dismissed the claims under Fed. R. Civ. P. 12(b)(6). A final judgment order was entered on

January 19, 2006 and this appeal followed. 

 II. ANALYSIS

A. Standard of Review

Whether the district court properly dismissed plaintiffs’ claims under Rule 12(b)(6) is a

question of law subject to de novo review. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006).

The court must construe the complaint in the light most favorable to plaintiffs, accept all well-pled

factual allegations as true and determine whether plaintiffs undoubtedly can prove no set of facts

consistent with their allegations that would entitle them to relief. Id. Though decidedly liberal, this

standard does require more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand

C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). Plaintiffs’ obligation to provide the “grounds” of their

entitlement to relief requires more than labels and conclusions or a formulaic recitation of the

elements of the cause of action. Bell Atlantic Corp. v. Twombley, — U.S. — , 127 S.Ct. 1955, 1964-

65 (2007). The factual allegations, assumed to be true, must do more than create speculation or

suspicion of a legally cognizable cause of action; they must show entitlement to relief. Id. at 1965.

To state a valid claim, a complaint must contain either direct or inferential allegations respecting all

the material elements to sustain recovery under some viable legal theory. Id. at 1969.

B. Standing

In granting the state defendants’ motion to dismiss, the district court rejected their arguments

that plaintiffs lacked standing to prosecute their claims. LULAC, 2004 WL 3048724 at *2.

Accepting the allegations of plaintiffs’ complaint at face value, the district court was satisfied that

LULAC met the requirements of organizational standing as defined in American Civil Liberties

Union of Ohio Foundation, Inc. v. Ashbrook, 375 F.3d 484, 489 (6th Cir. 2004).1

 

 The district court was similarly unpersuaded by the state defendants’ contention that only

illegal aliens, who are not members of a suspect class and are therefore entitled only to minimal

protection under the Equal Protection Clause, would even arguably suffer the sort of harm that
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To establish standing to sue, an individual must demonstrate “(1) actual or threatened injury which is (2) fairly

traceable to the challenged action and (3) a substantial likelihood the relief requested will redress or prevent the

plaintiff’s injury.” Id. at 488-89. 

3

Although the term “satisfactory evidence of identification” is not defined in the Tennessee Code, its meaning

has been clarified in the case law. See State v. Walker, 12 S.W.3d 460, 465 (Tenn. 2000) (adopting an “objectively

reasonable” test for evaluating identification evidence and requiring that an officer have a “specific articulable reason

to doubt that the cited person has accurately identified himself or herself before taking him or her into custody”). 

4

The district court’s determination that the injury-in-fact requirement is met is conclusory, but correct. 2004

WL 3048724 at *2. We are satisfied that the difficulties, inconvenience or hardship with which the new driver license

law allegedly threatens plaintiffs represents an injury-in-fact within the zone of interests to be protected by the Equal

Protection Clause and the constitutional right to travel. We further agree with the district court’s determination, however,

for reasons more fully set forth below, that plaintiffs’ alleged injury, while sufficient to confer standing, is insufficient

to make out a constitutional violation. See Club Italia Soccer & Sports Organization Inc. v. Charter Tp. of Shelby, 470

F.3d 286, 291-92 (6th Cir. 2006) (distinguishing between injury to interests within zone of interests protected by equal

protection necessary to confer standing from injury necessary to prevail on merits of equal protection claim). 

would confer standing to bring these claims, because only illegal aliens are denied both a driver

license and a certificate for driving under the new Tennessee law.2

 The court took note of plaintiffs’

allegations that lawful temporary resident aliens, as a result of being issued a “not valid for

identification” certificate for driving in lieu of a driver license, could experience difficulties in

producing “satisfactory evidence of identification.” See First Amended Complaint ¶¶ 22-27. This

“satisfactory evidence of identification” is required under various provisions of Tennessee law in

order to render a person charged with a misdemeanor offense or traffic rule violation eligible for

issuance of a citation in lieu of arrest. See, e.g., Tenn. Code Ann. § 40-7-118(c)(3).3

 Hence,

plaintiffs impliedly allege that the denial of a driver license (a) makes it necessary for a lawful

temporary resident alien to carry his or her passport and/or other immigration documents for

personal identification purposes; and (b) increases the risk that he or she will be subject to arrest for

any suspected minor infraction simply because a law enforcement officer may find his or her proof

of identification unfamiliar and therefore “unsatisfactory.” The district court was satisfied that such

alleged potential difficulties are sufficient to make out the requisite injury to confer standing on

lawful temporary resident aliens who reside in Tennessee. 

On appeal, the state defendants do not challenge this latter ruling and we find no error in it.4

As to LULAC’s organizational standing, however, the state defendants renew their challenge, with

a different twist. They contend, with reference to the standards set forth in ACLU of Ohio, that the

complaint does not allege that any of the individually named plaintiffs is a LULAC member or that

any LULAC member is a resident of Tennessee otherwise eligible for a Tennessee driver license or

certificate for driving. Absent such allegations, i.e., that a member is subject to an actual or

threatened injury, defendants contend LULAC cannot satisfy the requirements of organizational

standing. 

Plaintiffs respond first that this particular standing argument, having not been raised in the

district court, has been effectively waived. Indeed, the general rule is that the court of appeals will

not review issues raised for the first time on appeal. Barner v. Pilkington N. Am., 399 F.3d 745, 749

(6th Cir. 2005). However, inasmuch as standing is a threshold requirement, it must be addressed,

even in the first instance on appeal, because the court of appeals is obliged to satisfy itself of its own

jurisdiction before proceeding to the merits of the appeal. Children’s Healthcare is a Legal Duty,

Inc. v. Deters, 92 F.3d 1412, 1419 (6th Cir. 1996) (Batchelder, J., concurring) (collecting cases);

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998) (“Standing to sue is part of

the common understanding of what it takes to make a justiciable case.”).
No. 06-5306 League of United Latin Am. Citizens,

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5

Since we heard oral arguments and took this appeal under advisement, defendants have advised the Court that

Tennessee’s driver license law was materially amended on May 21, 2007, so as to render plaintiffs’ claims moot. 2007

Public Acts Chapter 194. Plaintiffs have responded by opposing the suggestion of mootness. Indeed, though the

amendatory act effectively repeals the challenged “certificate for driving” program, it does not take effect until October

1, 2007. The suggestion of mootness is therefore premature.

Secondly, notwithstanding any technical deficiency in their complaint, plaintiffs insist the

record establishes that both individually named plaintiffs, Yolanda Lewis and Alex Siguenza, who

have alleged that they are residents of Tennessee, see First Amended Complaint ¶¶ 7, 9, are also

members of LULAC. Indeed, their respective affidavits, filed in support of plaintiffs’ motion for

preliminary injunction, state that they are members of LULAC. The affidavits also state that each

is lawfully present in the United States and at least imply, consistent with the allegations of their

complaint, that each is indeed a resident of Tennessee. Accepted at face value, the unrefuted

affidavits appear to satisfactorily answer defendants’ reformulated standing challenge,

demonstrating that LULAC members are affected by the Chapter 778 changes to Tennessee’s driver

license law and that LULAC therefore has organizational standing. 

Defendants argue that their standing challenge was made in their motion to dismiss under

Rule 12(b)(6) and that the sufficiency of plaintiffs’ complaint should be tested based solely on the

strength of its allegations, without assistance from matters outside the pleadings, like affidavits. Yet,

this precise argument, regarding the complaint’s failure to expressly allege that LULAC members

were harmed by Chapter 778, was not made below, at a time when plaintiffs could have moved for

and been freely granted leave to amend their complaint to cure the defect. See Fed. R. Civ. P. 15(a)

(leave to amend “shall be freely granted when justice so requires”). Now, as the argument is raised

first on appeal, it would not serve justice to dismiss the appeal at this point because of a technical

pleading deficiency, in the face of undisputed record facts confirming that plaintiffs actually do have

standing and did have standing to prosecute their claims when the complaint was filed. See

Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001) (standing is

to be assessed under the facts existing when the complaint was filed). Considering the present

record in light of defendants’ particular standing challenge, we conclude that plaintiffs have

adequately cleared this “qualifying hurdle.” See Children’s Healthcare, 92 F.3d at 1419. 

We therefore find no error in the district court’s holding that plaintiffs have standing to

proceed with their claims.5

 

C. Equal Protection Claim

1. Rational Basis or Heightened Scrutiny?

(a) Suspect Class

 The district court’s dismissal of plaintiffs’ equal protection claim is based on the conclusion

that the classification drawn by Chapter 778, treating illegal aliens and lawful temporary resident

aliens differently than lawful permanent resident aliens, is subject to “rational basis” scrutiny.

Ordinarily a state law classification that “neither burdens a fundamental right nor targets a suspect

class” will be upheld “so long as it bears a rational relation to some legitimate end.” Vacco v. Quill, 521 U.S. 793, 799 (1997). Plaintiffs contend the district court erred in applying rational basis

scrutiny. They argue that issuance of certificates for driving instead of driver licenses to aliens who

are not lawful permanent residents represents a classification that discriminates against a suspect

class, aliens, and infringes their fundamental right to travel. These effects of Tennessee’s driver

license law are said to demand heightened scrutiny, requiring the court to “carefully examine” the

governmental interest claimed to justify the discrimination and determine “whether that interest is
No. 06-5306 League of United Latin Am. Citizens,

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Plaintiffs’ allegations could be construed as asserting the interests of illegal aliens. Defendants have insisted

on so construing the complaint, despite the unrefuted evidence that the individual named plaintiffs are lawful temporary

residents. Yet, considering that illegal aliens are not a suspect class, Plyler, 457 U.S. at 223, and considering plaintiffs’

emphasis on the lawfulness of the individual named plaintiffs’ presence in the United States in conjunction with their

insistence on heightened scrutiny, we conclude that plaintiffs are not presently pursuing any claim on behalf of illegal

aliens. 

Furthermore, even if plaintiffs’ complaint were deemed to assert the rights of illegal aliens, considering that

illegal aliens are not a suspect class and any differential treatment of them would be subject only to rational basis

scrutiny, it is apparent, for the reasons that follow, that counts I and VI, to the extent they state claims on behalf of illegal

aliens, fail to pass muster. 

legitimate and substantial” and “whether the means adopted to achieve the goal are necessary and

precisely drawn.” Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (quoting Examining Board v. Flores de

Otero, 426 U.S. 572, 605 (1976)). 

The district court recognized that aliens are “persons” and are protected under the Equal

Protection Clause. LULAC, 2004 WL 3048724 at *3, n.1. The court further recognized that a

classification based on alienage is suspect, citing City of Cleburne, Texas v. Cleburne Living Center,

Inc., 473 U.S. 432 (1985). Id. at *3. However, in reasoning clear and succinct, the court concluded

that Chapter 778 does not discriminate based on alienage:

This case is not about “citizens” versus “aliens.” Plaintiffs argue that

classifications based on alienage are inherently suspect. But the statute at issue does

not classify persons based on alienage. The statutory classification in this case is

between citizens and lawful permanent resident aliens on the one hand, and illegal

aliens and those aliens who are not permanent lawful residents, on the other hand.

Thus, the classification created by the drivers’ license legislation is not between

aliens and citizens. The drivers’ license law does not distinguish among persons

because of a protected classification. For instance, aliens can qualify for either a

drivers’ license or a drivers’ certificate based on legitimate criteria other than

alienage. Instead, the classification is based on the legality of the alien’s presence

in the country under federal law (lawful permanent resident aliens vs. illegal aliens)

and/or the length of time the federal government has authorized the alien to stay in

this country (permanent vs. temporary). Thus, the court is not persuaded that the

legislation burdens a suspect class, and should be subjected to strict scrutiny

analysis. 

Id. (footnote omitted). The district court went on to hold that illegal aliens are not a suspect class,

citing Plyler v. Doe, 457 U.S. 202, 223 (1982), and that the subclass of aliens legally admitted on

a temporary basis is not a suspect class. Id. at *4. 

On appeal, plaintiffs neither argue nor cite authority for the proposition that illegal aliens are

a suspect class. They assert only the interests of a distinct subclass of aliens: those who are lawful

temporary residents; i.e., aliens who are not lawful permanent residents; aliens whose authorized

presence is tied to a specific purpose or defined period of time.6

 They argue that a classification

which affects only some but not all aliens, must still be scrutinized strictly. In support, they rely

primarily on Nyquist v. Mauclet, where “close judicial scrutiny” was applied to strike down a state

law that prevented some but not all “resident aliens” from receiving state financial assistance for

higher education. 432 U.S. at 7-8. Indeed, the Nyquist court held that the fact that the challenged

statute discriminated against only a subclass of aliens did not obviate the need to apply heightened

scrutiny. What was important to the Nyquist court was that the state law classification was “directed

at aliens and that only aliens were harmed by it.” Id. at 9. 
No. 06-5306 League of United Latin Am. Citizens,

et al. v. Bredesen, et al.

Page 7

The district court distinguished Nyquist on three bases: (1) the harm flowing from the

classification; (2) the fact that the Nyquist classification affected not just temporary, but also

permanent resident aliens; and (3) the gravity of the state interest justifying the classification.

LULAC, 2004 WL 3048724 at *4, n.3. We conclude that all three distinctions are material and we

agree with the district court that they compel a different outcome here than in Nyquist.

In Nyquist, a subclass of aliens, including permanent resident aliens, was denied a significant

privilege under New York law, state financial assistance for higher education. The Nyquist court

noted the unfairness implicit in disallowing permanent resident aliens, who were required to pay

their full share of the taxes that supported the financial aid programs, from equal participation in

those programs. 432 U.S. at 12. Under Tennessee’s driver license law, in contrast, lawful

temporary resident aliens are not denied driving privileges or any other privilege. Inasmuch as a

certificate for driving issued to a lawful temporary resident alien undisputedly affords him or her

the same driving privileges that a driver license affords a citizen or lawful permanent resident alien,

the instant subclass of aliens hardly suffers any cognizable harm as a direct result of the

classification. 

In fact, plaintiffs’ complaint is devoid of any allegation of actual harm suffered by a plaintiff.

Their claims are premised rather on the threat of harm stemming from the possibility that the

passport or other personal identification document a lawful temporary resident alien may carry in

lieu of a driver license may not be accepted by a law enforcement officer or other third party as

“satisfactory evidence of identification,” to the alien’s detriment. This could lawfully occur only

if there were objectively reasonable grounds to question the accuracy of the alien’s passport or other

identification paper. See n. 3, supra. While such potential difficulties stemming from the

classification may represent an injury within the zone of interests protected by the Equal Protection

Clause sufficient to confer standing, the fact that the claimed harm is so indirect and conjectural is

not insignificant in determining whether heightened scrutiny of the state law classification is

appropriate. The harm flowing from the denial of financial aid in Nyquist was clearly more

substantial than the hypothetical inconvenience or hardship posed by Tennessee’s issuance of

certificates for driving, instead of driver licenses, to lawful temporary residents. 

The district court also distinguished Nyquist on the ground that Tennessee’s interests in

maintaining highway safety and public safety are more compelling than were New York’s interests

in limiting higher education financial aid to persons who were or would become eligible to vote.

The district court deemed the issuance of certificates for driving to represent a reasonable exercise

of traditional police power, allowing temporary resident aliens to operate motor vehicles without

requiring the state to vouch for their identity. LULAC, 2004 WL 3048724 at *4-5 (noting state’s

legitimate interest in preventing use of its governmental machinery to facilitate concealment of

illegal aliens and other foreign nationals who may be involved in terrorist activities). 

The district court’s observation that Tennessee’s public safety interest is stronger than the

interest presented in Nyquist is plainly accurate. See Nyquist, 432 U.S. at 10-12 (exposing

weaknesses of New York’s asserted interests). Of course, the strength of the governmental interest

supporting the classification is most appropriately considered if and after the classification is found

to result in discriminatory harm to members of a suspect class. Yet, the governmental purpose is

not entirely immaterial in determining the appropriate level of scrutiny. That the harm complained

of is practically de minimis and results from the exercise of traditional police power are factors that

distinguish this case from Nyquist and counsel in favor of deferential review of the classification.

Still, it is the district court’s third basis for distinguishing Nyquist that is most important.

In Nyquist, the plaintiffs were lawful permanent resident aliens who were subject to discriminatory

harm and were treated as members of a suspect class. The reason this is critical is well explained
No. 06-5306 League of United Latin Am. Citizens,

et al. v. Bredesen, et al.

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Plaintiffs fault the district court for failing to address specially their claim on behalf of minor Sergio Chavez,

who, as alleged in count I of the complaint, was denied photo identification because he is not a lawful permanent resident

alien. They contend the classification, as it applies to him, is subject to heightened rational basis scrutiny, per Plyler, 457 U.S at 223, because Chavez is a minor. In Plyler, the Supreme Court recognized that a state law classification that

in LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005). In LeClerc, the Fifth Circuit noted that, although

classifications based on alienage are inherently suspect, the Supreme Court has employed strict

scrutiny with respect to only one subclass of aliens: lawful permanent residents. Id. at 415-16. The

state laws presented in cases such as Nyquist were deemed to warrant “close judicial scrutiny

because they took positions seemingly inconsistent with the congressional determination to admit

the alien to permanent residence.” Id. at 417 (quoting Foley v. Connelie, 435 U.S. 291, 295 (1978))

(emphasis added in LeClerc). 

The LeClerc court explained at length why lawful temporary resident aliens, or

“nonimmigrant aliens,” are not entitled to the same protection as lawful permanent resident aliens.

Id. at 417-20. In short, the court recognized that permanent resident aliens are “virtual citizens” who

are “legally entrenched in society” but who lack the ability to participate in the political process.

Id. at 417. This inability renders them “a prime example of a discrete and insular minority for whom

[ ] heightened judicial solicitude is appropriate.” Id. (quoting In re Griffiths, 413 U.S. 717, 721

(1973)). Permanent resident aliens are similarly situated to citizens in economic, social, and civic

conditions as well. Like citizens, they pay taxes, support the economy, serve in the armed forces,

and are entitled to reside permanently in the United States. Id. at 418. 

Temporary resident aliens, on the other hand, are admitted to the United States only for the

duration of their authorized status, are not permitted to serve in the U.S. military, are subject to strict

employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.

Id. at 418-19. Because of these aggregate factual and legal differences, the LeClerc court declined

to hold that nonimmigrant lawful temporary resident aliens comprise a suspect class entitled to the

extraordinary protection of strict scrutiny: “We decline to extend the Supreme Court’s decisions

concerning [permanent] resident aliens to different alien categories when the Court itself has shied

away from such expansion.” Id. at 419. The court went on to hold that rational basis review is the

appropriate standard for evaluating state law classifications affecting nonimmigrant aliens. Id. at

420. 

We find the analysis set forth in LeClerc to be persuasive. There are abundant good reasons,

both legal and pragmatic, why lawful permanent residents are the only subclass of aliens who have

been treated as a suspect class. This case presents no compelling reason why the special protection

afforded by suspect-class recognition should be extended to lawful temporary resident aliens.

Because the instant classification does not result in discriminatory harm to members of a suspect

class, it is subject only to rational basis scrutiny. 

The appropriateness of this conclusion is underscored by the fact that the classification

drawn by Tennessee law, unlike that presented in Nyquist, is in no way inconsistent with federal law,

but rather mirrors it. As the district court observed, Chapter 778 does not deny any benefit of state

law to lawful temporary resident aliens. It merely serves to deny state-issued proof of identification

to any alien whose presence the federal government has refrained from permanently authorizing, so

as to avoid the appearance that the State of Tennessee is vouching for his or her identity. The alien

issued a certificate for driving is free to drive on the highways of Tennessee and free to use his or

her own passport or other identification papers as needed. Despite plaintiffs’ efforts to depict

Chapter 778 as reflective of invidious discrimination against aliens warranting close judicial

scrutiny, the classification drawn is, on its face, sensible and directly derivative of aliens’ status

under immigration law.7 8
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imposed a “lifetime hardship on a discrete class of children not accountable for their disabling status” could not be

considered rational unless it furthered some “substantial” goal of the state. Id. at 223-24. Here, in contrast, plaintiffs

have failed to identify any hardship visited upon Chavez by the denial of photo identification that would warrant

heightened rational basis scrutiny. 

8

We are neither oblivious to nor persuaded by the concerns raised in our esteemed colleague’s dissenting

opinion. In this case, as in many, the answer depends on how the question is framed. The dissent charges us with

applying an overly narrow construction of, or carving out an unwarranted exception to, existing Supreme Court precedent

in a way that reflects “a value judgment as to the status of legal aliens in our society.” By affirming the lower court’s

order dismissing plaintiffs’ action for failure to state a valid claim, we are said to have “created a rule” that could be

significantly more harmful to nonimmigrant aliens in other contexts than the classification drawn by the Tennessee

Legislature in this case. 

First, the question posed is whether the district court erred in dismissing the specific equal protection claim

brought by plaintiffs in their complaint. The dissent’s concern about “other contexts” invites speculation immaterial to

resolution of the issues posed by the instant claim. By focusing on the particular statute challenged and the specific

concrete harm alleged by plaintiffs, we adhere to our proper judicial role. We are not distracted by “other contexts” not

before the court and we do not purport to create any generally applicable “rule.” Our holding—that Tennessee’s issuance

of certificates for driving to temporary resident aliens, in lieu of driver licenses, is not subject to heightened scrutiny—is

explicitly tied to the facts that (1) Tennessee’s classification, far from evidencing invidious discrimination, is not only

consistent with, but actually mirrors federal law; and (2) the classification works practically no cognizable harm, but only

speculative inconvenience. Our more deferential approach to Tennessee’s legislative judgment, based on the Supreme

Court’s guidance in Nyquist and other precedents, as elaborated on in LeClerc, is thus born of due respect for principles

of federalism and comity, and bespeaks no “value judgment” on the status of legal aliens in our society. 

(b) Fundamental Right to Travel

 Plaintiffs correctly argue that even in the absence of a suspect class, a classification warrants

strict scrutiny if it burdens the exercise of a fundamental right. They argue that denial of a driver

license that may be used for identification purposes burdens their fundamental right to travel. The

district court recognized that the Supreme Court has recognized a protected right to interstate travel,

Saenz v. Roe, 526 U.S. 489, 500 (1999), and the Sixth Circuit has recognized a protected right to

intrastate travel, i.e., “a right to travel locally through public spaces and roadways,” Johnson v. City

of Cincinnati, 310 F.3d 484, 494-98 (6th Cir. 2002). LULAC, 2004 WL 3048724 at *4. Yet, the

district court held the protected right to travel does not embody a right to a driver license or a right

to a particular mode of transportation, citing Duncan v. Cone, 2000 WL 1828089 (6th Cir.)

(unpublished) (holding “there is no fundamental right to drive a motor vehicle.”); John Doe No. 1

v. Georgia Dep’t of Public Safety, 147 F. Supp. 2d 1369, 1375 (N.D. Ga. 2001) (observing that “the

Circuit Courts have uniformly held that burdens on a single mode of transportation do not implicate

the right to interstate travel,” and collecting cases). Further, the district court held that the right to

travel, whatever its contours, is not infringed by Chapter 778 because a person who receives a

certificate for driving is able to operate a motor vehicle just like a person who receives a driver

license. LULAC, 2004 WL 3048724 at *5. Potential difficulties that may be experienced by one

who does not have a driver license to use for identification purposes were held not to implicate the

right to travel. 

In Saenz, the Supreme Court identified three components of the right to travel: “It protects

the right of a citizen of one State to enter and to leave another State, the right to be treated as a

welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,

for those travelers who elect to become permanent residents, the right to be treated like other citizens

in that State. 526 U.S. at 500. Plaintiffs have not identified, nor have we uncovered, any authority

for the proposition that lawful temporary resident aliens enjoy the same fundamental right to travel

that citizens do. Yet, even assuming temporary resident aliens’ right to travel is constitutionally

protected, the question remains whether such right is impermissibly burdened by Chapter 778.
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9

In fact, a recent Wall Street Journal article reported that automobile insurance companies are increasingly

targeting unlicensed illegal aliens as a lucrative market. Miriam Jordan, Illegal Residents Get Legal

Route to Car Coverage, The Wall Street Journal, May 1, 2007, at A1, available at

http://online.wsj.com/article/SB117798644243587739.html. If insurance is readily available to illegal aliens, the notion

that lawful temporary resident aliens may be denied coverage is simply not plausible.

A state law implicates the right to travel when it actually deters travel, when impeding travel

is its primary objective, or when it uses a classification that serves to penalize the exercise of the

right. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986). Tennessee’s issuance

of certificates for driving, which confer all the same driving privileges as driver licenses, is clearly

not designed primarily to impede travel and can hardly be said to deter or penalize travel. The

state’s denial of state-issued photograph identification to temporary resident aliens may arguably

result in inconvenience, requiring the bearer of a certificate for driving to carry other personal

identification papers, but this inconvenience can hardly be said to deter or penalize travel. To the

extent this inconvenience burdens exercise of the right to travel at all, the burden is incidental and

negligible, insufficient to implicate denial of the right to travel. See Town of Southold v. Town of

East Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (collecting cases recognizing that even citizens do

not have a constitutional right to the most convenient form of travel). Something more than a

negligible or minimal impact on the right to travel is required before strict scrutiny is applied. State

of Kansas v. United States, 16 F.3d 436, 442 (D.C. Cir. 1994). 

Plaintiffs contend it is conceivable that they could prove the certificate for driving might not

be accepted by an insurance company as satisfactory evidence of identification. If they could not

obtain automobile insurance, they argue, they would be prevented from driving legally in Tennessee.

While the argument is “conceivable,” it is hardly plausible. Plaintiffs offer no reason to believe any

insurance company would find a passport or other personal identification document, presented in

conjunction with a certificate for driving, inadequate for issuance of automobile insurance.9

 Even

if such an eventuality were deemed plausible, its occurrence and the resulting incidental “burden”

on travel would hardly be attributable to Chapter 778, but rather to a private entity’s exercise of

business discretion. Plaintiffs’ argument is simply too speculative, factually and legally, to justify

the conclusion that their right to travel is impermissibly burdened by issuance of a certificate for

driving that is not valid for identification. 

 Accordingly, we find no error in the district court’s determination that rational basis

scrutiny applies, because Chapter 778 implicates neither a suspect class nor a fundamental right.

2. Rational Relationship to Legitimate Government Purpose

Under traditional rational basis scrutiny, a state law classification will be upheld “so long

as it bears a rational relation to some legitimate end.” Vacco, 521 U.S. at 799. The reason for such

deferential review is explained as follows: 

The initial discretion to determine what is “different” and what is “the same” resides

in the legislatures of the States. A legislature must have substantial latitude to

establish classifications that roughly approximate the nature of the problem

perceived, that accommodate competing concerns both public and private, and that

account for limitations on the practical ability of the State to remedy every ill. In

applying the Equal Protection Clause to most forms of state action, we thus seek only

the assurance that the classification at issue bears some fair relationship to a

legitimate public purpose. 

LeClerc, 419 F.3d at 420 (quoting Plyler, 457 U.S. at 216). 
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The district court accepted that Chapter 778’s classification was designed to serve homeland

security interests by indicating to third parties that the State of Tennessee does not vouch for the

identity of the person holding a certificate for driving while at the same time allowing the holder of

the certificate to validly operate a motor vehicle in Tennessee. The court concluded that the

balancing of interests achieved by issuing certificates for driving to aliens who are not lawful

permanent residents is rationally related to this purpose. 

Plaintiffs do not directly challenge this aspect of the district court’s ruling. They argue that,

irrespective of the level of scrutiny employed, the classification must be carefully examined to

ensure that it rationally furthers some legitimate, articulated purpose. This careful examination can

hardly be conducted, they contend, based on the pleadings alone pursuant to Rule 12(b)(6). 

In urging this “careful” or “stringent” examination, plaintiffs rely on cases that addressed

discriminatory treatment of suspect classes, i.e., cases that employed heightened scrutiny. See

Examining Board, 426 U.S. at 605; Griffiths, 413 U.S. at 721-22. However, a classification such

as Chapter 778, subject to rational basis review, is accorded a “strong presumption of validity.”

Heller v. Doe by Doe, 509 U.S. 312, 319 (1993). The state has no obligation to produce evidence

sustaining the rationality of the classification. Id. at 320. To overcome this strong presumption of

validity, a challenger has the burden of negating all possible rational justifications for the

classification. Id.; Gean v. Hattaway, 330 F.3d 758, 771 (6th Cir. 2003). 

 Plaintiffs have not carried this burden either in their pleadings or in their appellate

arguments. The district court’s conclusion that the state’s interest—in refraining from vouching for

the identity of aliens who have not been granted permanent resident status by the federal government

but whose permission to stay here is tied to a specific purpose or period of time—is legitimate and

rationally served by Chapter 778 has not been shown to be erroneous. For the reasons set forth

above, it is apparent that, even upon viewing the allegations of plaintiffs’ complaint in the light most

favorable to plaintiffs, they fail to set forth a factual basis upon which relief can be granted under

the Equal Protection Clause. That the classification might ultimately be shown to have been drawn

unnecessarily broadly and to result in differential treatment and even inconvenience is of no

consequence where the classification is subject only to deferential rational basis scrutiny. See

Heller, 509 U.S. at 321 (observing that a classification does not fail rational basis review simply

because it is not made with “mathematical nicety” or because it results in some inequality). This

is because, under rational basis review, the court is obliged “to accept a legislature’s generalizations

even when there is an imperfect fit between means and ends.” Id. 

Accordingly, plaintiffs have failed to demonstrate that the challenged classification is not

rationally related to a legitimate government purpose. The district court’s dismissal of their equal

protection claim for failure to state a claim upon which relief can be granted must therefore be

affirmed.

D. Right to Travel Claim

Plaintiffs have asserted their constitutionally protected right to travel in two contexts: first,

in support of their argument in support of their count I equal protection claim that Chapter 778

should be subjected to strict scrutiny; and second, in support of their separate count VI claim for

infringement of their fundamental right to travel. As outlined above, the district court determined

that plaintiffs’ claims fail to adequately allege that their right to travel is actually burdened by

Chapter 778. For the same reasons that the district court properly concluded that the asserted

infringement of the right to travel does not warrant strict scrutiny of Chapter 778, it also properly

concluded that count VI fails to state a proper claim. We therefore uphold the district court’s

dismissal of the count VI. 
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III. CONCLUSION

Plaintiffs’ arguments for heightened scrutiny of Chapter 778 are based on allegations too

conclusory and conjectural to justify the inferences required to satisfy the essential elements of their

claims. Their claims do not, therefore, withstand scrutiny even under the decidedly liberal standard

of Rule 12(b)(6). Accordingly, the judgment of the district court, dismissing plaintiffs’ count I

claim for denial of equal protection as well as their count VI claim for violation of their right to

travel, is AFFIRMED. 
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________________

DISSENT ________________

RONALD LEE GILMAN, Circuit Judge, dissenting. The majority concludes that the district

court properly applied rational-basis review to a Tennessee law that differentiates between

temporary resident legal aliens (alternately referred to as nonimmigrant aliens) and permanent

resident legal aliens (alternately referred to as immigrant aliens). Because I believe that this

classification discriminates against a suspect class, I dissent on the ground that the district court

should have applied strict scrutiny instead of rational-basis review. See Graham v. Richardson, 403

U.S. 365, 372 (1971) (“[C]lassifications based on alienage, like those based on nationality or race,

are inherently suspect and subject to close judicial scrutiny.”). 

A key consequence of applying strict scrutiny is that the burden of proof shifts from the

plaintiffs to the defendants. Compare Midkiff v. Adams County Reg’l Water Dist., 409 F.3d 758, 770

(6th Cir. 2005) (“Under rational basis review, a plaintiff faces a severe burden and must negate all

possible rational justifications for the distinction.” (quotation marks omitted)), with Middleton v.

City of Flint, 92 F.3d 396, 404 (6th Cir. 1996) (“Under [strict scrutiny], [the defendant] must prove

that it had a compelling state interest when it enacted its plan, and that the plan is narrowly tailored

to further that compelling state interest.”). I therefore believe that we should remand the case to the

district court for a more complete development of the record under the proper standard of review.

I. ANALYSIS

LULAC challenges a Tennessee state law that precludes temporary resident legal aliens from

obtaining a full driver’s license. They can instead obtain only a driver’s certificate, which entitles

them to the same driving privileges as both permanent resident legal aliens and citizens, but denies

them the benefit of official state identification. In fact, the certificates state in bold letters “NOT

VALID FOR IDENTIFICATION,” or some substantially similar phrase. The principal issue in this

case is whether the Tennessee law’s differentiation between permanent and temporary resident legal

aliens implicates a suspect class so as to warrant strict scrutiny. The majority concludes that it does

not, and that rational-basis review is accordingly the proper standard. To support this conclusion,

the majority relies on the majority opinion in the only other federal-circuit case to have decided this

precise issue: LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005). Curiously, neither party cited

LeClerc in their briefing.

In LeClerc, the principal reason that the Fifth Circuit declined to extend strict scrutiny to

laws discriminating against nonimmigrant aliens was that “the [Supreme] Court itself has shied away

from such expansion.” 419 F.3d at 419. The majority finds this reasoning persuasive. Maj. Op. at

8. To be sure, the Supreme Court has never specifically held that temporary resident legal aliens,

as a subset of all aliens, are a suspect class for equal-protection purposes. But this silence alone

proves little. As an initial matter, equal protection is not one of those substantive areas of the law

where, as in the case of qualified immunity under 42 U.S.C. § 1983 or federal habeas corpus under

AEDPA, the degree to which Supreme Court precedent is “clearly established” determines the

likelihood of relief.

In addition, the Supreme Court has addressed intra-alienage classifications in state laws only

a handful of times since 1900—an inordinately small “sample size” from which to conclude with

certainty either that the classifications addressed in those cases collectively constitute an exhaustive

list or that an as-yet-unaddressed classification would necessarily receive different treatment from

the Court. A closer look at three of those cases strongly suggests that a classification of the kind at
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issue here would receive the same strict scrutiny that each of the classifications in those cases

received.

The first case is Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948), where the

Supreme Court applied strict scrutiny to, and ultimately held unconstitutional, a California law that

prohibited only those lawful aliens who were not eligible for federal citizenship—a group that, at

the time, included all Japanese aliens—from fishing in the ocean off of the state’s shores. Even

though the classification was only intra-alienage, as opposed to all aliens versus citizens, the Court

found strict scrutiny to be appropriate. The Court noted in relevant part that

[a]ll of the foregoing emphasizes the tenuousness of the state’s claim that it has

power to single out and ban its lawful alien inhabitants, and particularly certain racial

and color groups within this class of inhabitants, from following a vocation simply

because Congress has put some such groups in special classifications in exercise of

its broad and wholly distinguishable powers over immigration and naturalization.

Id. at 420. Similarly, the Court determined that California’s justification for the law was

“inadequate to justify California in excluding any or all aliens who are lawful residents of the State

from making a living by fishing in the ocean off its shores while permitting all others to do so.” Id.

at 421.

LULAC persuasively argues that the classification at issue in the present case is in effect the

same as that at issue in Takahashi—that is, between citizens and those aliens eligible for citizenship,

on the one hand, and all other aliens, on the other—because only permanent resident legal aliens are

eligible for citizenship under federal law. The majority, however, does not address this argument

in its opinion. 

Graham v. Richardson, 403 U.S. 365 (1971), is the second case on point. The Supreme

Court, citing Takahashi, again applied strict scrutiny to, and ultimately held unconstitutional, an

Arizona law that denied welfare benefits to those aliens who failed to meet a 15-year durational

residency requirement. All other aliens, as well as citizens, were exempt. Id. at 367. The Court

reiterated its prior precedent that “whatever may be the scope of the constitutional right of interstate

travel, aliens lawfully within this country have a right to enter and abide in any State in the Union

‘on an equality of legal privileges with all citizens under nondiscriminatory laws.’” Id. at 377-78

(quoting Takahashi, 344 U.S. at 420) (emphasis added). Most importantly, Graham made explicit

what the analysis in Takahashi and the rest of the Court’s alienage jurisprudence had necessarily

implied—namely, that “classifications based on alienage, like those based on nationality or race, are

inherently suspect and subject to close judicial scrutiny” because “[a]liens as a class are a prime

example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is

appropriate.” Id. at 371-72 (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4

(1938)) (footnotes omitted). 

The third and final case on point is Nyquist v. Mauclet, 432 U.S. 1 (1977), where the

Supreme Court, citing Graham, applied strict scrutiny to, and ultimately held unconstitutional, a

New York law barring only certain resident aliens from receiving financial assistance from the state

for higher education. Those resident legal aliens who had applied for citizenship, as well as those

who were not yet qualified for citizenship but had filed statements indicating an intent to qualify and

apply, were exempt from the prohibition and allowed to participate in the assistance program. Id.

at 3-4. Most pertinently, the Court stated that “[t]he fact that the [challenged] statute is not an

absolute bar [against all aliens] does not mean that it does not discriminate against the class.” Id.

at 9. Instead, “[t]he important points are that [the challenged statute] is directed at aliens and that

only aliens are harmed by it.” Id.
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The majority adopts virtually the entirety of the LeClerc majority’s analysis to distinguish

the Supreme Court precedents discussed above, but it does so without even mentioning the

numerous criticisms to which that analysis has been subject. In so doing, it also overlooks many of

the plaintiffs’ related arguments on appeal. A brief review of the procedural history in LeClerc

reveals the considerable extent—and passion—of those criticisms.

LeClerc was a consolidated appeal from two diametrically opposed opinions from the United

States District Court for the Eastern District of Louisiana. In LeClerc v. Webb, 270 F. Supp. 2d 779

(E.D. La. 2003), the district court determined that a Louisiana law precluding nonimmigrant aliens

from sitting for the state’s bar exam was subject to only rational-basis review. In contrast, a

different judge on the same court in Wallace v. Calogero, 286 F. Supp. 2d 748, 762 (E.D. La. 2003),

held that the law triggered strict scrutiny because nonimmigrant aliens were part of the general

“resident alien” suspect class. This difference in the applicable standard of review, moreover,

proved dispositive: The district court in LeClerc upheld the law, 270 F. Supp. 2d at 801, whereas

the court in Wallace declared it “unenforceable,” 286 F. Supp. 2d at 764.

The debate continued once the cases had been consolidated for appeal before the Fifth

Circuit. Judge Stewart issued a lengthy and detailed dissent to Judge Jones’s majority opinion. In

his dissent, Judge Stewart vigorously disputed the majority’s conclusion that nonimmigrant aliens

were not a suspect class and that laws discriminating against them were therefore subject to only

rational-basis review. As an initial matter, Judge Stewart dismissed as unfounded the majority’s

wariness “about ‘expanding’ strict scrutiny review to nonimmigrant aliens as a distinctive suspect

class in the absence of a black letter holding by the U.S. Supreme Court to that effect.” LeClerc, 419 F.3d at 426 (Stewart, J., dissenting). He instead emphasized that “the Supreme Court’s

statement [in Graham] that ‘alienage is a suspect class’ by definition includes nonimmigrant aliens

as part of that class.” Id. The Court’s post-Graham caselaw has only reinforced that literal

meaning, in Judge Stewart’s opinion, because “the Court has still spoken of a general ‘alien’ suspect

class” “[d]espite the Court’s familiarity with the distinction between immigrant and nonimmigrant

aliens.” Id. at 428.

Judge Stewart especially took exception to the majority’s “heavy” reliance on the statement

in Application of Griffiths, 413 U.S. 717, 722 (1973), that “[r]esident aliens, like citizens, pay taxes,

support the economy, serve in the Armed Forces, and contribute in myriad other ways to our

society.” First, he noted that nonimmigrant aliens, as a matter of fact, “do pay taxes, support the

economy and contribute in other ways to our society.” LeClerc, 419 F.3d at 428 (Stewart, J.,

dissenting). In addition, he argued that a focus on “an aliens’ [sic] ability to serve in the Armed

Forces or pay taxes” is misplaced because, as a matter of law, “the basis for aliens’ [suspect] class

designation seems to be premised on aliens’ inability to vote, and thus their impotence in the

political process, and the long history of invidious discrimination against them.” Id. at 428-29

(citing Plyler v. Doe, 457 U.S. 202, 218 n.14 (1982), Erwin Chemerinsky, Constitutional Law 618-

19 (1997), and Takahashi, 334 U.S. 410). 

The Supreme Court’s post-Graham caselaw directly supports Judge Stewart’s criticism. See,

e.g., Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 290, 290 n.28 (1978) (noting that,

although the Court has never held that “discreteness and insularity constitute necessary

preconditions to a holding that a particular classification is invidious,” “these elements have been

relied upon in recognizing a suspect class in only one group of cases, those involving aliens” (citing

Graham, 403 U.S. at 372)); Foley v. Connelie, 435 U.S. 291, 294 (1978) (clarifying that the Graham

court’s rationale for subjecting alienage-based classifications to “heightened judicial solicitude” was

that “aliens—pending their eligibility for citizenship—have no direct voice in the political

processes” (citing Carolene Prods., 304 U.S. at 152-53 n.4)); see also Recent Cases, Fifth Circuit

Holds That Louisiana Can Prevent Nonimmigrant Aliens From Sitting for the Bar, 119 Harv. L.
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Rev. 669, 674 (2005) (“That nonimmigrant aliens work under a different tax structure, cannot serve

in the military, and face mandatory departure from the United States, for example, does not justify

offering them less constitutional protection; if anything, these restrictions render them more

powerless and vulnerable to state predations—more ‘discrete and insular.’” (citing Carolene

Prods., 304 U.S. at 153 n.4) (emphasis added)).

Judge Stewart’s dissent was not the Fifth Circuit’s final word on LeClerc. Following the

decision of the three-judge panel, the plaintiffs petitioned for rehearing en banc. The court denied

the petition by the narrowest possible vote of 8 to 7. LeClerc v. Webb, 444 F.3d 428 (5th Cir. 2006).

Two of the seven judges who would have reheard the case en banc filed dissenting opinions from

the denial of the petition. In addition to Judge Stewart, who effectively reprised his original dissent,

Judge Higginbotham used pointed language to highlight both the weaknesses and the consequential

dangers in the majority’s analysis. He described the majority’s decision to exclude nonimmigrant

aliens from suspect-class designation as “a bold step not sanctioned by Supreme Court precedent.”

Id. at 429 (Higginbotham, J., dissenting from the denial of rehearing en banc). Judge Higginbotham

also criticized the majority for its “puzzling” silence in ignoring the doctrine of federal preemption,

or what he referred to as “the trumping constitutional power of the federal government in controlling

the nation’s borders, including matters of immigration and naturalization.” Id. Specifically, he

found that the majority’s decision to “relax[] scrutiny of state regulation of aliens as the federal

regulation of them is increased” “is too ambitious for me.” Id. at 430; see also id. at 429-30 (calling

the LeClerc majority’s reasoning “perverse” and “exactly backwards” because, in “draw[ing]

distinctions between different classes of aliens, it shifts responsibility over aliens from the Congress

to the States”).

Commentators have also questioned the analysis in LeClerc. One has referred to the majority

opinion as a “short-sighted and bureaucratic decision that misconstrues precedent and misapplies

equal protection analysis.” Recent Cases, 119 Harv. L. Rev. at 670. Most “counterintuitive,” in that

commentator’s opinion, was the majority’s insistence on nonimmigrant aliens’ temporariness given

that “the Supreme Court [has] never differentiated equal protection review based on status as an

immigrant or a nonimmigrant alien” and that “the governing cases also appear to downplay the

relevance of aliens’ transience.” Id. at 673; see also LeClerc, 419 F.3d at 428 (Stewart, J.,

dissenting) (“Despite the Court’s familiarity with the distinction between immigrant and

nonimmigrant aliens, the Court has still spoken of a general ‘alien’ suspect class.”). This

nondifferentiation, moreover, could be, and has been, read as “implying that the precise status is not

[the Supreme Court’s] focus, as long as it is a legal status.” Kathleen Ann Harrison, LeClerc v.

Webb: Rational Scrutiny Analysis of Equal Protection Claims by Nonimmigrant Aliens, 25 Miss.

C. L. Rev. 273, 281 (2006). Indeed, as discussed in greater detail below, the only exception to the

Graham rule that aliens are a suspect class is in regard to illegal aliens. See Plyler, 457 U.S. at 219

n.19 (“We reject the claim that ‘illegal aliens’ are a ‘suspect class.’”).

No matter the specific nature of their respective criticisms, the commentators have shared

Judge Higginbotham’s overarching concern about LeClerc’s “bold step” and its significance for the

future. That is, the exclusion of nonimmigrant aliens from suspect-class designation “may be setting

a dangerous precedent that could serve to erode the rights of nonimmigrants in other contexts.”

Harrison, 25 Miss. C. L. Rev. at 282; see also Recent Cases, 119 Harv. L. Rev at 676 n.62

(“[P]ermitting state governments to single out nonimmigrant aliens in this manner could promote

anti-alien employment discrimination based on seemingly neutral qualities like ‘transience.’”).

Those “other contexts,” of course, could be significantly more harmful to nonimmigrants as a class

than the exclusion from a state bar exam, as in LeClerc, or the inability to obtain a regular state

driver’s license, as in the present case.
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The majority here, however, fails to address any of these criticisms and, in fact, never

acknowledges that there was a dissent in LeClerc at all. Even the majority in LeClerc itself

recognized the closeness of the issue, conceding that the relevant Supreme Court precedent

contained “some ambiguity.” 419 F.3d at 415. Although my specific reasons for dissenting largely

mirror those already expressed by Judges Stewart and Higginbotham, and in turn are echoed by the

commentators, I believe that a larger jurisprudential principle is driving the debate.

At its most basic level, my disagreement with the majority here and in LeClerc is a

fundamental difference of opinion regarding the proper role of the federal circuit courts in

addressing issues that the Supreme Court itself has never specifically resolved. The majority

appears to adopt the cautionary approach of the LeClerc majority, “declin[ing] to extend the

Supreme Court’s decisions concerning [permanent] resident aliens to different alien categories when

the Court itself has shied away from such expansion.” Maj. Op. at 8 (quoting LeClerc, 419 F.3d at

419). I, on the other hand, would adopt what is in essence the more literal approach, taking the

Supreme Court at its word when it reaffirmed in Graham that “classifications based on alienage .

. . are inherently suspect and subject to close judicial scrutiny.” 403 U.S. at 372. 

Stated differently, the majority apparently believes that the Supreme Court’s generally

applicable pronouncements should not be applied to a narrower context that they ostensibly cover

unless and until the Court does so itself. Yet despite its avowed reluctance to jump ahead of the

Supreme Court, this is precisely what the majority has done. Its holding in effect presumes that the

Supreme Court would withhold suspect-class designation from nonimmigrant aliens if it were to

decide that precise issue. See LeClerc, 444 F.3d at 429 (Higginbotham, J., dissenting from the

denial of rehearing en banc) (describing the LeClerc majority’s decision to exclude nonimmigrant

aliens from suspect-class designation as “a bold step not sanctioned by Supreme Court precedent”).

This holding not only is inconsistent with the Supreme Court’s more general language regarding

alienage, but arrogates the very power upon which the majority professes to be so reluctant to

infringe. 

I believe that the canons of statutory interpretation provide a useful, albeit inexact, analogy

to the situation before us. All federal courts, including this one, are well aware that “[o]ne of the

most basic canons of statutory interpretation is that a more specific provision takes precedence over

a more general one.” See United States v. Perry, 360 F.3d 519, 535 (6th Cir. 2004) (citing Green

v. Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989), and Radzanower v. Touche Ross & Co., 426

U.S. 148, 153 (1976)). A corollary of this canon is that “[a] general statutory rule usually does not

govern unless there is no more specific rule.” Green, 490 U.S. at 524 (emphasis added). In the

absence of a more specific rule, in other words, the general rule governs. 

The majority’s holding in the present case is inconsistent with these well-established and

uncontroversial principles of law. It ignores the Supreme Court’s general rule that aliens constitute

a suspect class and, following the LeClerc majority, creates a more specific rule for nonimmigrant

aliens where no such rule otherwise exists. I am not familiar with any authority that permits the

lower federal courts to interpret Supreme Court precedent in this manner, which is totally at odds

with the widely accepted method for interpreting federal statutes.

To be sure, the lower federal courts interpret Supreme Court caselaw to create their own incircuit law all the time. That is, after all, our job. See Northcross v. Bd. of Educ., 302 F.2d 818, 824

(6th Cir. 1962) (“[T]his Court must follow the supreme law of the land, as interpreted by the

Supreme Court.”). But creating in-circuit law as a natural extension of Supreme Court precedent

to meet new facts patterns, on the one hand, and sua sponte carving out exceptions to still-good

Supreme Court law to do so, on the other, are vastly different things. See West v. Anne Arundel
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County, 137 F.3d 752, 757 (4th Cir. 1998) (“Our task . . . is not to predict what the Supreme Court

might do but rather to follow what it has done.”).

This case presents a number of serious constitutional questions, the least of which, somewhat

ironically, is the merits issue of whether the Tennessee driver’s license law runs afoul of the Equal

Protection Clause of the Fourteenth Amendment. Answering that question can come only after a

determination of the appropriate standard of review, which itself must follow a decision as to

whether the individuals burdened by the law under review fit within a “suspect” classification. This

initial determination is the most critical of the three, in my opinion, because beyond simply setting

the analysis in motion, it necessarily expresses a value judgment as to the status of legal aliens in

our society. See Foley, 435 U.S. at 294 (“The decisions of this Court with regard to the rights of

aliens living in our society have reflected fine, and often difficult, questions of values.”). Most

lower-court judges are unsurprisingly and properly cautious in making those value judgments as a

matter of course, and I share the majority’s inclination to defer to the Supreme Court to do so in this

case. But contrary to the majority’s shying-away rationale, the Supreme Court has spoken regarding

the individuals at issue here, having proclaimed unequivocally in Graham that “classes based on

alienage, like those based on nationality or race, are inherently suspect and subject to close judicial

scrutiny.” Graham, 403 U.S. at 372. 

As noted above, the Supreme Court has carved out only a single exception to this general

rule, holding in Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982), that illegal aliens are not members of

a suspect class and that state classifications against them are accordingly subject to the far-moreforgiving rational-basis standard of review. That the number of exceptions remains at only one a

quarter of a century after Plyler is especially pertinent to the present case because, during the very

year that Plyler was decided, the Court confronted—but explicitly bypassed—an opportunity to

create an exception that would have covered the subclass of aliens at issue here. See Toll v. Moreno, 458 U.S. 1, 9-10 (1982) (determining that, because the University of Maryland’s policy of denying

nonimmigrant-alien students the “in-state” discount that both citizen and immigrant-alien students

received for tuition and fees violated the Supremacy Clause of the Constitution, “[w]e . . . have no

occasion to consider whether the policy violates the Due Process or Equal Protection Clauses”).

In bypassing the equal-protection question in Moreno, moreover, the Supreme Court

necessarily left undisturbed the district court’s holding, later adopted without qualification by the

Fourth Circuit, that all legal aliens “who maintain their place of general abode within the United

States,” whether “immigrant or nonimmigrant” aliens, are “wrapped . . . in the suspect classification

blanket” and entitled to have laws that discriminate against them subjected to strict scrutiny.

Moreno v. Toll, 489 F. Supp. 658, 663-64 (D. Md. 1980), aff’d by Moreno v. Univ. of Maryland, 645

F.2d 217, 220 (4th Cir. 1981) (per curiam) (affirming the district court’s equal-protection holding

“[f]or reasons sufficiently stated by the district court”). Reading Plyler and Moreno in conjunction

with Graham yields the inescapable conclusion that all lawfully admitted aliens—permanent and

temporary alike—remain members of an inherently suspect class. 

II. CONCLUSION

For all of the reasons set forth above, I would reverse the judgment of the district court and

remand the case for reconsideration under the strict-scrutiny standard of review. I therefore

respectfully dissent.