CA5 - Equal Protection and Non-Resident Aliens

LeClerk v. Webb (Jones, J.)

This case should be of interest to anyone interested in Equal Protection or immigration law.

Louisana Supreme Court Rule XVII requires that a person be a citizen or a permanent resident alien to sit for the bar exam.  In these two cases, consolidated on appeal, a couple of foreigners argue that this violates the Equal Protection and Due Process clauses.

The most interesting issue in here is what standard of review is appropriate under the Fourteenth Amendment when a state discriminates against non-resident aliens who have been legally admitted to the United States.  The Fifth Circuit first rejects strict scrutiny.  The Court distinguishes a number of Supreme Court cases applying strict scrutiny to state laws affecting immigrants because in those cases the affected party was a permanent resident.  The Court instead relies on a line of Supreme Court cases applying rational basis review to laws that discriminate against illegal aliens.  The Fifth Circuit justifies this distinction on the grounds that nonresident aliens are not "entrenched" in American society and are therefore less likely to form a "discrete and insular minority" like resident aliens, who are here for the long haul. 

The Fifth Circuit then considers more briefly the possibility of applying intermediate scrutiny or a heightened rational basis review as described in Plyler v. Doe, 457 U.S. 202 (1982).  Intermediate scrutiny is quicky rejected because this case does not involve gender.  A heightened rational basis review is a little tougher.  In Plyler, the Supreme Court considered a state law that barred illegal immigrant children from public schools.  The Supreme Court required the state to demonstrate a fair relationship between the law and a substantial state interest -- a form of heightened rational basis review -- because the discrimination was targeted at children who had no control over their situation and were not culpable for their status as illegal aliens.  But because the plaintiffs in this case entered the country as voluntary adults, Plyler is distinguished.

This leaves plain old rational basis review.  Applying that standard, the Fifth Circuit upholds Lousiana's rule.  The State's interest is in having a less transient Bar, which would make monitoring its members easier.  A nonresident alien is more likely to leave the country, placing them outside the reach of the Louisiana Bar.  They might also be deported right in the middle of a trial.

Judge Stewart dissents from the Court's Equal Protection analysis.  He would have applied strict scrutiny.  Stewart notes that the Supreme Court has repeatedly applied strict scrutiny to classifications based on "alienage."  As a matter of dictionary definition, these plaintiffs were discriminated based on their alienage.  Stewart reads the Supreme Court's use of the term "resident alien" to mean merely aliens who reside in the United States.

Judge Stewart also disagrees with the majority's application of rational basis review.  Both resident aliens and nonresident aliens can be deported.  And citizens and aliens alike may leave the country or the state.  And because the Louisiana Bar does not have reciprocity with other states or even require those who are admitted to reside in Louisiana, its ability to discipline citizen lawyers who move or do not reside in Louisana is limited.

Although I have no opinion about what level of scrutiny should apply in this case, assuming it's rational basis, I think Judge Jones has the better of the argument.  Judge Stewart appears to want a greater degree of tailoring than ordinary rational basis review requires.  But I'm sure there are con law scholars out there with a more informed opinion, so comments are open.