United States Court of Appeals

Fifth Circuit

FILED

March 27, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

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

_______________________

CAROLINE WALLACE; EMILY MAW,

Plaintiffs - Appellees,

versus

PASCAL F. CALOGERO JR., in his official capacity as
2

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.
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

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
4

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
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

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.2As 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.
1

LeClerc v. Webb, 419 F.3d 405, 426-31 (Stewart, J., concurring in

part and dissenting in part).

6

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,1I 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
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the denial of rehearing en banc penned by Judge Higginbotham.