Lead Opinion
McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined. GILMAN, J. (pp. 537-44), delivered a separate dissenting opinion.
OPINION
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 (“LU-LAC”), 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, pursüant to Tenn.Code Ann. § 55-50-331(g), is said not to be an adequate substitute, because
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,
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,
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,
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 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.
On appeal, the state defendants do not challenge this latter ruling and we find no error in it.
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.,
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 LU-LAC. 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,
We therefore find no error in the district court’s holding that plaintiffs have standing to proceed with their claims.
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,
The district court recognized that aliens are “persons” and are protected under the Equal Protection Clause. LULAC,
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*531 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,
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.
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. L 17-LAC,
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.
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 Ny-quist 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. LU-LAC,
The district court’s observation that Tennessee’s public safety interest is stronger than the interest presented in Nyquist is plainly accurate. See Nyquist,
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 in LeClerc v. Webb,
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,
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
(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,
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.”
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,
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.
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,
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,
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,
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
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.
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.
Notes
. "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,
. 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.
. 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,
.The district court's determination that the injury-in-fact requirement is met is concluso-ry, but correct.
. 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.
. 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,
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.
. 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,
. 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 (he 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 bom of due respect for principles of federalism and comity, and bespeaks no "value judgment” on the status of legal aliens in our society.
. 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 Al, available at http://online.wsj.com/ article/SB 1177986442435 87739.html. If insurance is readily available to illegal aliens, the notion that lawful temporary resident aliens may be denied coverage is simply not plausible.
Dissenting Opinion
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,
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 ease to have decided this precise issue: LeClerc v. Webb,
In LeClerc, the principal reason that the Fifth Circuit declined to extend strict scrutiny to laws discriminating against nonim-migrant aliens was that “the [Supreme] Court itself has shied away from such expansion.”
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 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,
[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,
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,
The third and final case on point is Nyquist v. Mauclet,
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,
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,
Judge Stewart especially took exception to the majority’s “heavy” reliance on the statement in Application of Griffiths,
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. Le-Clerc v. Webb,
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 “counterintui-tive,” 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,
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 nonimmi-grants 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.
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.”
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, “declining] 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 533 (quoting LeClerc,
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,
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,
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 nonimmi-grant 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 in-circuit law all the time. That is, after all, our job. See Northcross v. Bd. of Educ.,
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,
As noted above, the Supreme Court has carved out only a single exception to this general rule, holding in Plyler v. Doe,
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,
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.