Leclerc v. Webb

• Decision Date: 27 March 2006
• Docket Number: No. 03-30752.,No. 03-31009.,03-30752.,03-31009.
• Citation: 444 F.3d 428
• Parties: Karen LeCLERC; Guillaume Jarry; Beatrice Boulord; Maureen D. Affleck, Plaintiffs-Appellants-Cross Appellees, v. 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; Jeffrey 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. Caroline Wallace; Emily Maw, Plaintiffs-Appellees, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.3d 428

Karen LeCLERC; Guillaume Jarry; Beatrice Boulord; Maureen D. Affleck, Plaintiffs-Appellants-Cross Appellees, v. 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; Jeffrey 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.

Caroline Wallace; Emily Maw, Plaintiffs-Appellees, v. 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.

No. 03-30752.

No. 03-31009.

United States Court of Appeals, Fifth Circuit.

March 27, 2006.

Louis R. Koerner, Jr., Koerner Law Office, Houma, LA, for Plaintiffs-Appellants-Cross Appellees.

Maureen D. Affleck (argued), New Orleans, LA, pro se.

Harry A. Rosenberg, Christopher Kent Ralston, Phelps Dunbar, New Orleans, LA, for Defendants-Appellants-Cross Appellants.

Vincent James Booth, Amite, LA, Schuyler W. Livingston (argued), Benjamin C. Block, Covington & Burling, Washington, DC, for Plaintiffs-Appellees.

Bruce Victor Schewe (argued), Phelps Dunbar, New Orleans, LA, for Calogero.

Appeal from the United States District Court for the Eastern District of Louisiana; Jay C. Zainey, Judge.

ON PETITION FOR REHEARING EN BANC (Opinion Aug. 18, 2005, 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.

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

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 Supreme Court has pointed to as itself demanding strict scrutiny of state regulations of persons whose presence in the...